No Easy Answers

It's all the news today, but this is a District Court ruling, and
is not yet "the law." Having just skimmed the opinion, my first
impression is that the Judge made some startlingly conclusory
leaps, especially as to the injury to the plaintiffs. For all we
know, the surveillance (if there was any) was reasonable and
based on probable cause, but until an admission (specific leak
against a plaintiff) or a prosecution ensue, there is no way to
tell.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN CIVIL LIBERTIES UNION;
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; AMERICAN CIVIL
LIBERTIES UNION OF MICHIGAN;
COUNCIL ON AMERICAN-ISLAMIC Case No. 06-CV-10204
RELATIONS; COUNCIL ON AMERICAN
ISLAMIC RELATIONS MICHIGAN; Hon. Anna Diggs Taylor
GREENPEACE, INC.; NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS; JAMES BAMFORD; LARRY
DIAMOND; CHRISTOPHER HITCHENS;
TARA MCKELVEY; and BARNETT R. RUBIN,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY / CENTRAL
SECURITY SERVICE; and LIEUTENANT
GENERAL KEITH B. ALEXANDER, in his official
capacity as Director of the National Security Agency
and Chief of the Central Security Service,
Defendants.
_______________________________________________________/
MEMORANDUM OPINION
I. Introduction
This is a challenge to the legality of a secret program (hereinafter "TSP") undisputedly
inaugurated by the National Security Agency (hereinafter "NSA") at least by 2002 and continuing
today, which intercepts without benefit of warrant or other judicial approval, prior or subsequent,
the international telephone and internet communications of numerous persons and organizations
1
within this country. The TSP has been acknowledged by this Administration to have been
authorized by the President's secret order during 2002 and reauthorized at least thirty times since. ^1
Plaintiffs are a group of persons and organizations who, according to their affidavits, are
defined by the Foreign Intelligence Surveillance Act (hereinafter "FISA") as "U.S. persons." ^2 They
conducted regular international telephone and internet communications for various uncontestedly
legitimate reasons including journalism, the practice of law, and scholarship. Many of their
communications are and have been with persons in the Middle East. Each Plaintiff has alleged a
"well founded belief" that he, she, or it, has been subjected to Defendants' interceptions, and that
the TSP not only injures them specifically and directly, but that the TSP substantially chills and
impairs their constitutionally protected communications. Persons abroad who before the program
spoke with them by telephone or internet will no longer do so.
Plaintiffs have alleged that the TSP violates their free speech and associational rights, as
guaranteed by the First Amendment of the United States Constitution; their privacy rights, as
guaranteed by the Fourth Amendment of the United States Constitution; the principle of the
Separation of Powers because the TSP has been authorized by the President in excess of his
Executive Power under Article II of the United States Constitution, and that it specifically violates
the statutory limitations placed upon such interceptions by the Congress in FISA because it is
conducted without observation of any of the procedures required by law, either statutory or
Constitutional.
Before the Court now are several motions filed by both sides. Plaintiffs have requested a
1
Available at http://www.white-house.gov//news/releases/2005/12/20051219-2.html
2
Pub. L. 95-511, Title I, 92 Stat 1976 (Oct. 25, 1978), codified as amended at 50 U.S.C. §§ 1801 et seq.
2
permanent injunction, alleging that they sustain irreparable damage because of the continued
existence of the TSP. Plaintiffs also request a Partial Summary Judgment holding that the TSP
violates the Administrative Procedures Act ("APA"); the Separation of Powers doctrine; the First
and Fourth Amendments of the United States Constitution, and the statutory law.
Defendants have moved to dismiss this lawsuit, or in the alternative for Summary Judgment,
on the basis of the state secrets evidentiary privilege and Plaintiffs' lack of standing.
II. State Secrets Privilege
Defendants argue that the state secrets privilege bars Plaintiffs' claims because Plaintiffs
cannot establish standing or a prima facie case for any of their claims without the use of state
secrets. Further, Defendants argue that they cannot defend this case without revealing state secrets.
For the reasons articulated below, the court rejects Defendants' argument with respect to Plaintiffs'
claims challenging the TSP. The court, however, agrees with Defendants with respect to Plaintiffs'
data- mining claim and grants Defendants' motion for summary judgment on that claim.
The state secrets privilege is an evidentiary rule developed to prevent the disclosure of
information which may be detrimental to national security. There are two distinct lines of cases
covering the privilege. In the first line of cases the doctrine is more of a rule of "non-justiciability
because it deprives courts of their ability to hear suits against the Government based on covert
espionage agreements." El-Masri v. Tenet, 2006 WL 1391390 at 7 (E.D.Va., 2006). The seminal
decision in this line of cases is Totten v. United States 92 U.S. 105 (1875). In Totten, the plaintiff
brought suit against the government seeking payment for espionage services he had provided during
the Civil War. In affirming the dismissal of the case, Justice Field wrote:
The secrecy which such contracts impose precludes any action for
their enforcement. The publicity produced by an action would itself
3
be a breach of a contract of that kind, and thus defeat a recovery.
Totten, 92 U.S. at 107.
The Supreme Court reaffirmed Totten in Tenet v. Doe, 544 U.S. 1, (2005). In Tenet, the
plaintiffs, who were former Cold War spies, brought estoppel and due process claims against the
United States and the Director of the Central Intelligence Agency (hereinafter "CIA") for the CIA's
alleged failure to provide them with the assistance it had allegedly promised in return for their
espionage services. Tenet, 544 U.S. at 3. Relying heavily on Totten, the Court held that the
plaintiffs claims were barred. Delivering the opinion for a unanimous Court, Chief Justice
Rehnquist wrote:
We adhere to Totten. The state secrets privilege and the more
frequent use of in camera judicial proceedings simply cannot provide
the absolute protection we found necessary in enunciating the Totten
rule. The possibility that a suit may proceed and an espionage
relationship may be revealed, if the state secrets privilege is found not
to apply, is unacceptable: "Even a small chance that some court will
order disclosure of a source's identity could well impair intelligence
gathering and cause sources to `close up like a clam.'" (citations
omitted). Tenet, 544 U.S. at 11.
The second line of cases deals with the exclusion of evidence because of the state secrets
privilege. In United States v. Reynolds, 345 U.S. 1 (1953), the plaintiffs were the widows of three
civilians who died in the crash of a B-29 aircraft. Id. at 3-4. The plaintiffs brought suit under the
Tort Claims Act and sought the production of the Air Force's official accident investigation report
and the statements of the three surviving crew members. Id. The Government asserted the states
secret privilege to resist the discovery of this information, because the aircraft in question and those
aboard were engaged in a highly secret mission of the Air Force. Id. at 4. In discussing the state
secrets privilege and its application, Chief Justice Vinson stated:
The privilege belongs to the Government and must be asserted by it;
4
it can neither be claimed nor waived by a private party. It is not to be
lightly invoked. There must be formal claim of privilege, lodged by
the head of the department which has control over the matter, after
actual personal consideration by that officer. The court itself must
determine whether the circumstances are appropriate for the claim of
privilege, and yet do so without forcing a disclosure of the very thing
the privilege is designed to protect. Reynolds, 345 U.S. at 8.
The Chief Justice further wrote:
In each case, the showing of necessity which is made will determine
how far the court should probe in satisfying itself that the occasion
for invoking the privilege is appropriate. Where there is a strong
showing of necessity, the claim of privilege should not be lightly
accepted, but even the most compelling necessity cannot overcome
the claim of privilege if the court is ultimately satisfied that military
secrets are at stake. Reynolds, 345 U.S. at 11.
The Court sustained the Government's claim of privilege, finding the plaintiffs' "necessity" for the
privileged information was "greatly minimized" by the fact that the plaintiffs had an available
alternative. Reynolds, 345 U.S. at 11. Moreover, the Court found that there was nothing to suggest
that the privileged information had a "causal connection with the accident" and that the plaintiffs
could "adduce the essential facts as to causation without resort to material touching upon military
secrets." Id.
In Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978) (Halkin I ), the District of Columbia Circuit
Court applied the holding in Reynolds in a case in which the plaintiffs, Vietnam War protestors,
alleged that the defendants, former and present members of the NSA, the CIA, Defense Intelligence
Agency, the Federal Bureau of Investigation and the Secret Service engaged in warrantless
surveillance of their international wire, cable and telephone communications with the cooperation
of telecommunications providers. Id. at 3. The telecommunications providers were also named as
defendants. Id. The plaintiffs specifically challenged the legality of two separate NSA surveillance
5
operations undertaken from 1967 to 1973 named operation MINARET and operation SHAMROCK. ^3
Id. at 4.
The Government asserted the state secrets privilege and moved for dismissal for the
following reasons: (1) discovery would "confirm the identity of individuals or organizations whose
foreign communications were acquired by NSA"; (2) discovery would lead to the disclosure of
"dates and contents of such communications"; or (3) discovery would "divulge the methods and
techniques by which the communications were acquired." Halkin, 598 F.2d at 4-5. The district
court held that the plaintiffs' claims against operation MINARET had to be dismissed "because the
ultimate issue, the fact of acquisition, could neither be admitted nor denied." Id. at 5. The district
court, however, denied the Government's motion to dismiss the plaintiffs' claims regarding
operation SHAMROCK, because it "thought congressional committees investigating intelligence
matters had revealed so much information about operation SHAMROCK that such a disclosure
would pose no threat to the NSA mission." Id. at 10.
On appeal, the District of Columbia Circuit Court affirmed the district court's dismissal of
the plaintiffs' claims with respect to operation MINARET but reversed the court's ruling with
respect to operation SHAMROCK. In reversing the district court ruling regarding SHAMROCK,
the circuit court stated:
. . . we think the affidavits and testimony establish the validity of the
state secrets claim with respect to both SHAMROCK and MINARET
acquisitions; our reasoning applies to both. There is a "reasonable
danger", (citation omitted) that confirmation or denial that a
particular plaintiff's communications have been acquired would
3
Operation MINARET was part of the NSA's regular intelligence activity in which foreign electronic
signals were monitored. Operation SHAMROCK involved the processing of all telegraphic traffic leaving or
entering the United States. Hepting v. AT & T Corp 2006 WL 2038464 (N.D.Cal.2006) quoting Halkin.
6
disclose NSA capabilities and other valuable intelligence information
to a sophisticated intelligence analyst. Halkin, 598 F.2d at 10.
The case was remanded to the district court and it dismissed the plaintiffs' claims against the NSA
and the individuals connected with the NSA's alleged monitoring. Halkin v. Helms, 690 F.2d 977,
984 (D.C. Cir.1982) (Halkin II).
In Halkin II, 690 F.2d 977, the court addressed plaintiffs' remaining claims against the CIA,
which the district court dismissed because of the state secrets privilege. In affirming the district
court's ruling, the District of Columbia Circuit stated:
It is self-evident that the disclosures sought here pose a "reasonable
danger" to the diplomatic and military interests of the United States.
Revelation of particular instances in which foreign governments
assisted the CIA in conducting surveillance of dissidents could strain
diplomatic relations in a number of ways-by generally embarrassing
foreign governments who may wish to avoid or may even explicitly
disavow allegations of CIA or United States involvements, or by
rendering foreign governments or their officials subject to political
or legal action by those among their own citizens who may have been
subjected to surveillance in the course of dissident activity. Halkin
II, 690 F.2d at 993.
Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir.1983) was yet another case where the District
of Columbia Circuit dealt with the state secrets privilege being raised in the defense of a claim of
illegal wiretapping. In Ellsberg, the plaintiffs, the defendants and attorneys in the "Pentagon
Papers" criminal prosecution brought suit when, during the course of that litigation, they discovered
"that one or more of them had been the subject of warrantless electronic surveillance by the federal
Government." Id. at 51. The defendants admitted to two wiretaps but refused to respond to some
of the plaintiffs' interrogatories, asserting the state secrets privilege. Id. at 54. The plaintiffs sought
an order compelling the information and the district court denied the motion, sustaining the
Government's assertion of the state secrets privilege. Id. at 56. Further, the court dismissed the
7
plaintiffs' claims that pertained "to surveillance of their foreign communications." Ellsberg v.
Mitchell, 709 F.2d at 56.
On appeal, the District of Columbia Circuit reversed the district court with respect to the
plaintiffs' claims regarding the Government's admitted wiretaps, because there was no reason to
"suspend the general rule that the burden is on those seeking an exemption from the Fourth
Amendment warrant requirement to show the need for it." Ellsberg, 709 F.2d at 68. With respect
to the application of the state secrets privilege, the court stated:
When properly invoked, the state secrets privilege is absolute. No
competing public or private interest can be advanced to compel
disclosure of information found to be protected by a claim of
privilege. However, because of the broad sweep of the privilege, the
Supreme Court has made clear that "[i]t is not to be lightly invoked."
Thus, the privilege may not be used to shield any material not strictly
necessary to prevent injury to national security; and, whenever
possible, sensitive information must be disentangled from
nonsensitive information to allow for the release of the latter.
Ellsberg, 709 F.2d at 56.
In Kasza v. Browner, 133 F.3d 1159 (9th Cir.1998), the plaintiffs, former employees at a
classified United States Air Force facility, filed suit against the Air Force and the Environmental
Protection Agency under the Resource Conservation and Recovery Act, alleging violations at the
classified facility. Id. at 1162. The district court granted summary judgment against the plaintiffs,
because discovery of information necessary for the proof of the plaintiffs' claims was impossible
due to the state secrets privilege. Id. In affirming the district court's grant of summary judgment
against one of the plaintiffs, the Ninth Circuit stated:
Not only does the state secrets privilege bar [the plaintiff] from
establishing her prima facie case on any of her eleven claims, but any
further proceeding in this matter would jeopardize national security.
No protective procedure can salvage [the plaintiff's] suit. Kasza, 133
F.3d at 1170.
8
The Kasza court also explained that "[t]he application of the state secrets privilege can have
. . . three effects." Kasza, 133 F.3d at 1166. First, when the privilege is properly invoked "over
particular evidence, the evidence is completely removed from the case." Id. The plaintiff's case,
however, may proceed "based on evidence not covered by the privilege." Id. "If . . . the plaintiff
cannot prove the prima facie elements of her claim with nonprivileged evidence, then the court may
dismiss her claim as it would with any plaintiff who cannot prove her case." Id. Second, summary
judgement may be granted, "if the privilege deprives the defendant of information that would
otherwise give the defendant a valid defense to the claim." Id. Lastly, "notwithstanding the
plaintiff's ability to produce nonprivileged evidence, if the `very subject matter of the action' is a
state secret, then the court should dismiss the plaintiff's action based solely on the invocation of the
state secrets privilege." Id.
The Sixth Circuit delivered its definitive opinion regarding the states secrets privilege, in
Tenenbaum v. Simonini, 372 F.3d 776 (6th Cir. 2004). In that case, the plaintiffs sued the United
States and various employees of federal agencies, alleging that the defendants engaged in criminal
espionage investigation of the plaintiff, David Tenenbaum, because he was Jewish. Id. at 777. The
defendants moved for summary judgment, arguing that they could not defend themselves against the
plaintiffs' "claims without disclosing information protected by the state secrets doctrine." Id. The
district court granted the defendants' motion and the Sixth Circuit affirmed stating:
We further conclude that Defendants cannot defend their conduct
with respect to Tenenbaum without revealing the privileged
information. Because the state secrets doctrine thus deprives
Defendants of a valid defense to the Tenenbaums' claims, we find
that the district court properly dismissed the claims. Tenenbaum, 372
F.3d at 777.
Predictably, the War on Terror of this administration has produced a vast number of cases,
9
in which the state secrets privilege has been invoked. ^4 In May of this year, a district court in the
Eastern District of Virginia addressed the state secrets privilege in El-Masri v. Tenet, 2006 WL
1391390, (E.D. Va. May 12, 2006). In El Masri, the plaintiff, a German citizen of Lebanese
descent, sued the former director of the CIA and others, for their alleged involvement in a program
called Extraordinary Rendition. Id. at 1. The court dismissed the plaintiff's claims, because they
could not be fairly litigated without the disclosure of state secrets. ^5 Id. at 6.
In Hepting v. AT & T Corp., 2006 WL 2038464, (E.D. Cal. June 20, 2006), which is akin to
our inquiry in the instant case, the plaintiffs brought suit, alleging that AT & T Corporation was
collaborating with the NSA in a warrantless surveillance program, which illegally tracked the
domestic and foreign communications and communication records of millions of Americans. Id.
at 1. The United States intervened and moved that the case be dismissed based on the state secrets
privilege. Id. Before applying the privilege to the plaintiffs' claims, the court first examined the
information that had already been exposed to the public, which is essentially the same information
that has been revealed in the instant case. District Court Judge Vaughn Walker found that the
Government had admitted:
. . . it monitors "contents of communications where * * * one party
to the communication is outside the United States and the
government has a reasonable basis to conclude that one party to the
communication is a member of al Qaeda, affiliated with al Qaeda, or
a member of an organization affiliated with al Qaeda, or working in
support of al Qaeda." (citations omitted). Hepting, 2006 WL
4
In Terkel v. AT & T Corp., 2006 WL 2088202 (N.D. Ill. July 25, 2006), the plaintiffs alleged that AT&T
provided information regarding their telephone calls and internet communications to the NSA. Id. at 1. District
Court Judge Matthew F. Kennely dismissed the case because the state secrets privilege made it impossible for the
plaintiffs to establish standing. Id. at 20.
5
Further, the court was not persuaded by the plaintiff's argument that the privilege was negated because the
Government had admitted that the rendition program existed because it found the Government's admissions to be
without details.
10
2038464, at 19.
Accordingly Judge Walker reasoned that "[b]ased on these public disclosures," the court could not
"conclude that the existence of a certification regarding the `communication content' program is a
state secret." Id.
Defendants' assertion of the privilege without any request for answers to any discovery has
prompted this court to first analyze this case under Totten/Tenet, since it appears that Defendants
are arguing that this case should not be subject to judicial review. As discussed supra, the
Totten/Tenet cases provide an absolute bar to any kind of judicial review. Tenet, 544 U.S. at 8. This
rule should not be applied in the instant case, however, since the rule applies to actions where there
is a secret espionage relationship between the Plaintiff and the Government. Id. at 7-8. It is
undisputed that Plaintiffs' do not claim to be parties to a secret espionage relationship with
Defendants. Accordingly, the court finds the Totten/Tenet rule is not applicable to the instant case.
The state secrets privilege belongs exclusively to the Executive Branch and thus, it is appropriately
invoked by the head of the Executive Branch agency with control over the secrets involved.
Reynolds, 345 U.S. at 1. In the instant case, the court is satisfied that the privilege was properly
invoked. Defendants' publicly-filed affidavits from Director of National Intelligence John D.
Negroponte and Signal Intelligence Director, NSA Major General Richard J. Quirk, set forth facts
supporting the Government's contention that the state secrets privilege and other legal doctrines
required dismissal of the case. Additionally, Defendants filed classified versions of these
declarations ex parte and in camera for this court's review. Defendants also filed ex parte and in
camera versions of its brief along with other classified materials, further buttressing its assertion of
the privilege. Plaintiffs concede that the public declaration from Director Negroponte satisfies the
11
procedural requirements set forth in Reynolds. Therefore, this court concludes that the privilege has
been appropriately invoked.
Defendants argue that Plaintiffs' claims must be dismissed because Plaintiffs cannot establish
standing or a prima facie case for any of its claims without the disclosure of state secrets. Moreover,
Defendants argue that even if Plaintiffs are able to establish a prima facie case without revealing
protected information, Defendants would be unable to defend this case without the disclosure of
such information. Plaintiffs argue that Defendants' invocation of the state secrets privilege is
improper with respect to their challenges to the TSP, since no additional facts are necessary or
relevant to the summary adjudication of this case. Alternatively, Plaintiffs argue, that even if the
court finds that the privilege was appropriately asserted, the court should use creativity and care to
devise methods which would protect the privilege but allow the case to proceed.
The "next step in the judicial inquiry into the validity of the assertion of the privilege is to
determine whether the information for which the privilege is claimed qualifies as a state secret."
El Masri, 2006 WL 1391390, at 4. Again, the court acknowledges that it has reviewed all of the
materials Defendants submitted ex parte and in camera. After reviewing these materials, the court
is convinced that the privilege applies "because a reasonable danger exists that disclosing the
information in court proceedings would harm national security interests, or would impair national
defense capabilities, disclose intelligence-gathering methods or capabilities, or disrupt diplomatic
relations with foreign governments." Tenenbaum, 372 F.3d at 777.
Plaintiffs, however, maintain that this information is not relevant to the resolution of their
claims, since their claims regarding the TSP are based solely on what Defendants have publicly
admitted. Indeed, although the instant case appears factually similar to Halkin, in that they both
12
involve plaintiffs challenging the legality of warrantless wiretapping, a key distinction can be drawn.
Unlike Halkin or any of the cases in the Reynolds progeny, Plaintiffs here are not seeking any
additional discovery to establish their claims challenging the TSP. ^6
Like Judge Walker in Hepting, this court recognizes that simply because a factual statement
has been made public it does not necessarily follow that it is true. Hepting, 2006 WL 2038464 at
12. Hence, "in determining whether a factual statement is a secret, the court considers only public
admissions or denials by the [G]overnment." Id. at 13. It is undisputed that Defendants have
publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets
communications where one party to the communication is outside the United States, and the
government has a reasonable basis to conclude that one party to the communication is a member of
al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or
working in support of al Qaeda. As the Government has on many occasions confirmed the veracity
of these allegations, the state secrets privilege does not apply to this information.
Contrary to Defendants' arguments, the court is persuaded that Plaintiffs are able to establish
a prima facie case based solely on Defendants' public admissions regarding the TSP. Plaintiffs'
declarations establish that their communications would be monitored under the TSP. ^7 Further,
Plaintiffs have shown that because of the existence of the TSP, they have suffered a real and
concrete harm. Plaintiffs' declarations state undisputedly that they are stifled in their ability to
6
In Halkin, the plaintiffs were requesting that the Government answer interrogatories and sought to depose
the secretary of defense. Halkin, 598 F.2d at 6.
7
See generally, in a Declaration, attorney Nancy Hollander stated that she frequently engages in
international communications with individuals who have alleged connections with terrorist organizations. (Exh. J,
Hollander ). Attorney William Swor also provided a similar declaration. (Exh. L, Swor Decl. ). Journalist Tara
McKelvey declared that she has international communications with sources who are suspected of helping the
insurgents in Iraq. (Exh. K, McKelvey Decl.).
13
vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney
Plaintiffs, uphold their oath of providing effective and ethical representation of their clients. ^8 In
addition, Plaintiffs have the additional injury of incurring substantial travel expenses as a result of
having to travel and meet with clients and others relevant to their cases. Therefore, the court finds
that Plaintiffs need no additional facts to establish a prima facie case for any of their claims
questioning the legality of the TSP.
The court, however, is convinced that Plaintiffs cannot establish a prima facie case to support
their data- mining claims without the use of privileged information and further litigation of this issue
would force the disclosure of the very thing the privilege is designed to protect. Therefore, the
court grants Defendants' motion for summary judgment with respect to this claim.
Finally, Defendants assert that they cannot defend this case without the exposure of state
secrets. This court disagrees. The Bush Administration has repeatedly told the general public that
there is a valid basis in law for the TSP. ^9 Further, Defendants have contended that the President has
the authority under the AUMF and the Constitution to authorize the continued use of the TSP.
Defendants have supported these arguments without revealing or relying on any classified
information. Indeed, the court has reviewed the classified information and is of the opinion that this
information is not necessary to any viable defense to the TSP. Defendants have presented support
8
Plaintiffs' Statement of Undisputed Facts (hereinafter "SUF") SUF 15 (Exh. J, Hollander Decl. ¶¶12, 16,
25; Exh. L, Swor Decl. ¶¶9, 11-12, 14-16);Plaintiffs;' Reply Memorandum in Support of Plaintiffs' Motion for
Partial Summary Judgment (hereinafter "Pl.'s Reply") (Exh. P, Dratel Decl. ¶¶9-11; Exh. Q, Abdrabboh Decl.
¶¶7-8; Exh. R. Ayad. Decl. ¶¶ 4, 6-8); (Exh. M Niehoff Decl. ¶¶ 12 ).
9
On December 17, 2005, in a radio address, President Bush stated:
In the weeks following the terrorist attacks on our nation, I authorized the
National Security Agency, consistent with U.S. law and the Constitution, to
intercept the international communications of people with known links to al
Qaeda and related terrorist organizations.
http://www.whitehouse.gov/news/releases/2005/12/20051217.html
14
for the argument that "it . . is well-established that the President may exercise his statutory and
constitutional authority to gather intelligence information about foreign enemies." ^10 Defendants cite
to various sources to support this position. Consequently, the court finds Defendants' argument that
they cannot defend this case without the use of classified information to be disingenuous and without
merit.
In sum, the court holds that the state secrets privilege applies to Plaintiffs' data-mining claim
and that claim is dismissed. The privilege, however, does not apply to Plaintiffs' remaining claims
challenging the validity of the TSP, since Plaintiffs are not relying on or requesting any classified
information to support these claims and Defendants do not need any classified information to mount
a defense against these claims. ^11
III. Standing
Defendants argue that Plaintiffs do not establish their standing. They contend that Plaintiffs'
claim here is merely a subjective fear of surveillance which falls short of the type of injury necessary
to establish standing. They argue that Plaintiffs' alleged injuries are too tenuous to be recognized,
not "distinct and palpable" nor "concrete and particularized."
Article III of the U.S. Constitution limits the federal court's jurisdiction to "cases" and
"controversies". Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To have a genuine case
or controversy, the plaintiff must establish standing. "[T]he core component of standing is an
essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v.
10
Defendants' Brief in Support of Summary Judgment pg. 33.
11
Defendants also contend that Plaintiffs' claims are barred because they properly invoked statutory
privileges under the National Security Agency Act of 1959, 50 U.S.C. § 402 and the Intelligence Reform and
Terrorism Prevention Act of 2004, 50 U.S.C. § 403-(i)(1). Again, these privileges are not availing to Defendants
with respect to Plaintiffs' claims challenging the TSP, for the same reasons that the state secrets privilege does not
bar these claims.
15
Defenders of Wildlife, 504 U.S. at 560. To establish standing under Article III, a plaintiff must
satisfy the following three requirements: (1) "the plaintiff must have suffered an injury in fact - an
invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical"; (2) "there must be a causal connection between the
injury and the conduct complained of", and (3) "it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision." Id. at 560-561. The party invoking
federal jurisdiction bears the burden of establishing these elements. Id. at 561.
"An association has standing to bring suit on behalf of its members when its members would
otherwise have standing to sue in their own right, the interests it seeks to protect are germane to the
organization's purpose, and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Washington State
Apple Advertising Comm'n, 432 U.S. 333, 342 (1977)).
"At the pleading stage, general factual allegations of injury resulting from the defendant's
conduct may suffice, for on a motion to dismiss we `presume that general allegations embrace those
specific facts that are necessary to support the claim.' " Id. at 561 (quoting Lujan v. National
Wildlife Federation, 497 U.S. 871, 889 (1990)). "In response to a motion for summary judgment,
however, the plaintiff can no longer rest upon such `mere allegations,' but must `set forth' by
affidavit or other evidence `specific facts' Fed.R.Civ.Proc. 56(e), which for purposes of the summary
judgment motion will be taken to be true." Id. This court is persuaded that Plaintiffs in this case
have set forth the necessary facts to have satisfied all three of the prerequisites listed above to
establish standing.
16
To determine whether Plaintiffs have standing to challenge the constitutionality of the TSP,
we must examine the nature of the injury-in-fact which they have alleged. "The injury must be ...
`distinct and palpable,' and not `abstract' or `conjectural' or `hypothetical.'" National Rifle
Association of America v. Magaw, 132 F.3d 272, 280 (6th Cir. 1997) (citing Allen v. Wright, 468 U.S
737, 751 (1982)).
Plaintiffs here contend that the TSP has interfered with their ability to carry out their
professional responsibilities in a variety of ways, including that the TSP has had a significant impact
on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and
communicate with persons who are outside of the United States, including in the Middle East and
Asia. Plaintiffs have submitted several declarations to that effect. For example, scholars and
journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they
must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with
individuals abroad whom the United States government believes to be terrorist suspects or to be
associated with terrorist organizations. ^12 In addition, attorneys Nancy Hollander, William Swor,
Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate
with individuals abroad whom the United States government believes to be terrorist suspects or to
be associated with terrorist organizations, ^13 and must discuss confidential information over the phone
and email with their international clients. ^14 All of the Plaintiffs contend that the TSP has caused
clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that
12
SUF 15B (Exh. I, Diamond Decl. ¶9; Exh. K, McKelvey Decl. ¶8-10).
13
SUF 15B (Exh. J, Hollander Decl. ¶¶12-14, 17-24; Exh. L, Swor Decl. ¶¶5-7, 10);Pl.'s Reply ( Exh. M,
Dratel Decl. ¶¶5-6; Exh. Q, Abdrabboh Decl. ¶¶3-4; Exh. R, Ayad Decl. ¶¶ 5, 7-9).
14
SUF 15 (Exh. J, Hollander Decl. ¶¶12, 16, 25; Exh. L, Swor Decl. ¶¶9, 11-12, 14-16); Pl.'s Reply (Exh.
P, Dratel Decl. ¶¶5-6; Exh. Q, Abdrabboh Decl. ¶¶3-4; Exh. R, Ayad Decl. ¶¶ 6-7).
17
their communications will be intercepted. ^15 They also allege injury based on the increased financial
burden they incur in having to travel substantial distances to meet personally with their clients and
others relevant to their cases. ^16
The ability to communicate confidentially is an indispensable part of the attorney-client
relationship. As University of Michigan legal ethics professor Leonard Niehoff explains, attorney-
client confidentiality is "central to the functioning of the attorney-client relationship and to effective
representation." ^17 He further explains that Defendants' TSP "creates an overwhelming, if not
insurmountable, obstacle to effective and ethical representation" and that although Plaintiffs are
resorting to other "inefficient" means for gathering information, the TSP continues to cause
"substantial and ongoing harm to the attorney-client relationships and legal representations." ^18 He
explains that the increased risk that privileged communications will be intercepted forces attorneys
to cease telephonic and electronic communications with clients to fulfill their ethical
responsibilities. ^19
Defendants argue that the allegations present no more than a "chilling effect" based upon
purely speculative fears that the TSP subjects the Plaintiffs to surveillance. In arguing that the
injuries are not constitutionally cognizable, Defendants rely heavily on the case of Laird v. Tatum,
408 U.S. 1 (1972).
15
SUF 15 (Exh. J, Hollander Decl. ¶¶12, 16, 25; Exh. L, Swor Decl. ¶¶9, 11-12, 14-16);Pl.'s Reply (Exh. P,
Dratel Decl. ¶¶9-11; Exh. Q, Abdrabboh Decl. ¶¶7-8; Exh. R. Ayad. Decl. ¶¶ 4, 6-8).
16
SUF 15 (Exh. J, Hollander Decl. ¶¶20, 23-25; Exh. L, Swor Decl. ¶¶13-14); Pl.'s Reply (Exh. P, Dratel
Decl. ¶¶9-11; Exh. Q, Abdrabboh Decl. ¶¶7-8; Exh. R, Ayad Decl. ¶¶ 6-8).
17
Pl.'s Reply (Exh. M Niehoff Decl. ¶¶ 12 )
18
Pl.'s Reply (Exh. M Niehoff Decl. ¶¶ 19-20 )
19
Pl.'s Reply (Exh. M Niehoff Decl. ¶¶ 15-20 )
18
In Laird, the plaintiffs sought declaratory and injunctive relief on their claim that their rights
were being invaded by the Army's domestic surveillance of civil disturbances and "public activities
that were thought to have at least some potential for civil disorder." Id. at 6. The plaintiffs argued
that the surveillance created a chilling effect on their First Amendment rights caused by the
existence and operation of the surveillance program in general. Id. at 3. The Supreme Court
rejected the plaintiffs' efforts to rest standing upon the mere "chill" that the program cast upon their
associational activities. It said that the "jurisdiction of a federal court may [not] be invoked by a
complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere
existence, without more, of a governmental investigative and data-gathering activity." Id. (emphasis
added)
Laird, however, must be distinguished here. The plaintiffs in Laird alleged only that they
could conceivably become subject to the Army's domestic surveillance program. Presbyterian
Church v. United States, 870 F.2d 518, 522 (1989) (citing Laird v. Tatum, 408 U.S at 13) (emphasis
added). The Plaintiffs here are not merely alleging that they "could conceivably" become subject
to surveillance under the TSP, but that continuation of the TSP has damaged them. The President
indeed has publicly acknowledged that the types of calls Plaintiffs are making are the types of
conversations that would be subject to the TSP. ^20
Although Laird establishes that a party's allegation that it has suffered a subjective "chill"
alone does not confer Article III standing, Laird does not control this case. As Justice (then Judge)
20
In December 2005, the President publicly acknowledged that the TSP intercepts the contents of certain
communications as to which there are reasonable grounds to believe that (1) the communication originated or
terminated outside the United States, and (2) a party to such communication is a member of al Qaeda, a member of a
group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates. Available at http://www.white-
house.gov//news/releases/2005/12/20051219-2.html.
19
Breyer has observed, "[t]he problem for the government with Laird . . . lies in the key words
`without more.'" Ozonoff v. Berzak, 744 F.2d 224, 229 (1st Cir. 1984). This court agrees with
Plaintiffs' position that "standing here does not rest on the TSP's `mere existence, without more.'"
The Plaintiffs in this case are not claiming simply that the Defendants' surveillance has "chilled"
them from making international calls to sources and clients. Rather, they claim that Defendants'
surveillance has chilled their sources, clients, and potential witnesses from communicating with
them. The alleged effect on Plaintiffs is a concrete, actual inability to communicate with witnesses,
sources, clients and others without great expense which has significantly crippled Plaintiffs, at a
minimum, in their ability to report the news and competently and effectively represent their clients.
See Presbyterian Church v. United States, 870 F.2d 518 (1989) (church suffered substantial decrease
in attendance and participation of individual congregants as a result of governmental surveillance).
Plaintiffs have suffered actual concrete injuries to their abilities to carry out their professional
responsibilities. The direct injury and objective chill incurred by Plaintiffs are more than sufficient
to place this case outside the limitations imposed by Laird.
The instant case is more akin to Friends of the Earth, in which the Court granted standing
to environmental groups who sued a polluter under the Clean Water Act because environmental
damage caused by the defendant had deterred members of the plaintiff organizations from using and
enjoying certain lands and rivers. Friends of the Earth, 528 U.S. at 181-183. The Court there held
that the affidavits and testimony presented by plaintiffs were sufficient to establish reasonable
concerns about the effects of those discharges and were more than "general averments" and
"conclusory allegations." Friends of the Earth, 528 U.S. at 183-184. The court distinguished the
case from Lujan, in which the Court had held that no actual injury had been established where
20
plaintiffs merely indicated "`some day' intentions to visit endangered species around the world."
Friends of the Earth, 528 U.S. at 184 (quoting Lujan, 504 U.S. at 564). The court found that the
affiants' conditional statements that they would use the nearby river for recreation if defendant were
not discharging pollutants into it was sufficient to establish a concrete injury. Id. at 184.
Here, Plaintiffs are not asserting speculative allegations. Instead, the declarations asserted
by Plaintiffs establish that they are suffering a present concrete injury in addition to a chill of their
First Amendment rights. Plaintiffs would be able to continue using the telephone and email in the
execution of their professional responsibilities if the Defendants were not undisputedly and
admittedly conducting warrantless wiretaps of conversations. As in Friends of the Earth, this
damage to their interest is sufficient to establish a concrete injury.
Numerous cases have granted standing where the plaintiffs have suffered concrete
profession-related injuries comparable to those suffered by Plaintiffs here. For example, the First
Circuit conferred standing upon claimants who challenged an executive order which required
applicants for employment with the World Health Organization to undergo a "loyalty" check that
included an investigation into the applicant's associations and activities. The court there determined
that such an investigation would have a chilling effect on what an applicant says or does, a sufficient
injury to confer standing. Ozonoff, 744 F.2d at 228-229. Similarly, the District of Columbia Circuit
Court of Appeals granted standing to a reshelver of books at the Library of Congress who was
subjected to a full field FBI investigation which included an inquiry into his political beliefs and
associations and subsequently resulted in his being denied a promotion or any additional
employment opportunities; the court having determined that plaintiff had suffered a present
objective harm, as well as an objective chill of his First Amendment rights and not merely a
21
potential subjective chill as in Laird. Also, the Supreme Court in Presbyterian Church v. United
States, granted standing to a church which suffered decreased attendance and participation when the
government actually entered the church to conduct surveillance. Presbyterian Church, 870 F.2d
at 522. Lastly, in Jabara v. Kelley, 476 F.Supp. 561 (E.D. Mich. 1979), vac'd on other grounds
sub. nom. Jabara v. Webster, 691 F.2d 272 (6th Cir. 1982), the court held that an attorney had
standing to sue to enjoin unlawful FBI and NSA surveillance which had deterred others from
associating with him and caused "injury to his reputation and legal business." Id. at 568.
These cases constitute acknowledgment that substantial burdens upon a plaintiff's
professional activities are an injury sufficient to support standing. Defendants ignore the significant,
concrete injuries which Plaintiffs continue to experience from Defendants' illegal monitoring of
their telephone conversations and email communications. Plaintiffs undeniably have cited to
distinct, palpable, and substantial injuries that have resulted from the TSP.
This court finds that the injuries alleged by Plaintiffs are "concrete and particularized", and
not "abstract or conjectural." The TSP is not hypothetical, it is an actual surveillance program that
was admittedly instituted after September 11, 2001, and has been reauthorized by the President more
than thirty times since the attacks. ^21 The President has, moreover, emphasized that he intends to
continue to reauthorize the TSP indefinitely. ^22 Further, the court need not speculate upon the kind
of activity the Plaintiffs want to engage in - they want to engage in conversations with individuals
abroad without fear that their First Amendment rights are being infringed upon. Therefore, this
court concludes that Plaintiffs have satisfied the requirement of alleging "actual or threatened
21
Available at http://www.white-house.gov//news/releases/2005/12/20051219-2.html
22
Id.
22
injury" as a result of Defendants' conduct.
It must now be determined whether Plaintiffs have shown that there is a causal connection
between the injury and the complained of conduct. Lujan, 504 U.S. at 560-561. The causal
connection between the injury and the conduct complained of is fairly traceable to the challenged
action of Defendants. The TSP admittedly targets communications originated or terminated outside
the United States where a party to such communication is in the estimation of Defendants, a member
of al Qaeda, a member of a group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates. ^23
The injury to the Plaintiffs stems directly from the TSP and their injuries can unequivocally be
traced to the TSP.
Finally, it is likely that the injury will be redressed by the requested relief. A determination
by this court that the TSP is unconstitutional and a further determination which enjoins Defendants
from continued warrantless wiretapping in contravention of FISA would assure Plaintiffs and others
that they could freely engage in conversations and correspond via email without concern, at least
without notice, that such communications were being monitored. The requested relief would thus
redress the injury to Plaintiffs caused by the TSP.
Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish
standing, it is important to note that if the court were to deny standing based on the unsubstantiated
minor distinctions drawn by Defendants, the President's actions in warrantless wiretapping, in
contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from
judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control,
particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of
23
Available at http://www.white-house.gov//news/releases/2005/12/20051219-2.html
23
Rights. The three separate branches of government were developed as a check and balance for one
another. It is within the court's duty to ensure that power is never "condense[d] ... into a single
branch of government." Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must
always be mindful that "[w]hen the President takes official action, the Court has the authority to
determine whether he has acted within the law." Clinton v. Jones, 520 U.S. 681, 703 (1997). "It
remains one of the most vital functions of this Court to police with care the separation of the
governing powers . . . . When structure fails, liberty is always in peril." Public Citizen v. U.S. Dept.
of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).
Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are
given standing to challenge it, because each of them, is injured and chilled substantially in the
exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for
secrecy has apparently required that no person be notified that he is aggrieved by the activity, and
there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no
victim in America would be given standing to challenge this or any other unconstitutional activity,
according to the Government. The activity has been acknowledged, nevertheless.
Plaintiffs have sufficiently alleged that they suffered an actual, concrete injury traceable to
Defendants and redressable by this court. Accordingly, this court denies Defendants' motion to
dismiss for lack of standing.
IV. The History of Electronic Surveillance in America
Since the Court's 1967 decision of Katz v. U.S., 389 U.S. 347 (1967), it has been understood
that the search and seizure of private telephone conversations without physical trespass required
24
prior judicial sanction, pursuant to the Fourth Amendment. Justice Stewart there wrote for the Court
that searches conducted without prior approval by a judge or magistrate were per se unreasonable,
under the Fourth Amendment. Id. at 357.
Congress then, in 1968, enacted Title III of the Omnibus Crime Control and Safe Streets Act
(hereinafter "Title III") ^24 governing all wire and electronic interceptions in the fight against certain
listed major crimes. The Statute defined an " aggrieved person", ^25 and gave such person standing
to challenge any interception allegedly made without a judicial order supported by probable cause,
after requiring notice to such person of any interception made. ^26
The statute also stated content requirements for warrants and applications under oath therefor
made, ^27 including time, name of the target, place to be searched and proposed duration of that search,
and provided that upon showing of an emergency situation, a post-interception warrant could be
obtained within forty-eight hours. ^28
In 1972 the court decided U.S. v. U.S. District Court, 407 U.S. 297 (1972) (the Keith case)
and held that, for lawful electronic surveillance even in domestic security matters, the Fourth
Amendment requires a prior warrant.
In 1976 the Congressional "Church Committee" ^29 disclosed that every President since 1946
24
Pub. L. 90-351, 82 Stat. 211, codified as amended at 18 U.S.C. §§ 2510 et seq.
25
18 U.S.C. § 2510(11) ("aggrieved person" means a person who was a party to any intercepted wire, oral,
or electronic communication or a person against whom the interception was directed.)
26
18 U.S.C. § 2518
27
18 U.S.C. § 2518(1)
28
18 U.S.C. § 2518(7)
29
The "Church Committee" was the United States Committee to Study Governmental Operations with
Respect to Intelligence Activities.
25
had engaged in warrantless wiretaps in the name of national security, and that there had been
numerous political abuses ^30, and in 1978 Congress enacted the FISA. ^31
Title III specifically excluded from its coverage all interceptions of international or foreign
communications; and was later amended to state that "the FISA of 1978 shall be the exclusive
means by which electronic surveillance of foreign intelligence communications may be
conducted." ^32
The government argues that Title III's disclaimer language, at 18 U.S.C. § 2511(2)(f), that
nothing therein should be construed to limit the constitutional power of the President (to make
international wiretaps). In the Keith case, Justice Powell wrote that "Congress simply left
Presidential powers where it found them", that the disclaimer was totally neutral, and not a grant of
authority. U.S. v. U.S. District Court, 407 U.S. at 303.
The FISA defines a "United States person" ^33 to include each of Plaintiffs herein and requires
a prior warrant for any domestic international interception of their communications. For various
exigencies, exceptions are made. That is, the government is granted fifteen days from Congressional
Declaration of War within which it may conduct intercepts before application for an order. ^34 It is
also granted one year, on certification by the Attorney General, ^35 and seventy-two hours for other
30
S. REP. NO. 94-755, at 332 (1976)
31
Pub. L. 95-511, Title I, 92 Stat 1976 (Oct. 25, 1978), codified as amended at 50 U.S.C. §§ 1801 et seq.
32
18 U.S.C. §2511(2)(f)
33
50 U.S.C. § 1801(h)(4)(i)("United States person) means a citizen of the United States, an alien lawfully
admitted for permanent residence, an unincorporated association a substantial number of members of which are
citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is
incorporated in the United States which is not a foreign power.
34
50 U.S.C. § 1811
35
50 U.S.C. § 1802
26
defined exigencies. ^36
Those delay provisions clearly reflect the Congressional effort to balance executive needs
against the privacy rights of United States persons, as recommended by Justice Powell in the Keith
case when he stated that:
Different standards may be compatible with the Fourth Amendment
if they are reasonable both in relation to the legitimate need of
Government for intelligence information and the protected rights of
our citizens.. U.S. v. U.S. District Court, 407 U.S. at 322-323.
Also reflective of the balancing process Congress pursued in FISA is the requirement that
interceptions may be for no longer than a ninety day duration, minimization is again required ^37, and
an aggrieved person is again (as in Title III) required to be notified of proposed use and given the
opportunity to file a motion to suppress. ^38 Also again, alternatives to a wiretap must be found to
have been exhausted or to have been ineffective. ^39
A FISA judicial warrant, moreover, requires a finding of probable cause to believe that the
target was either a foreign power or agent thereof, ^40 not that a crime had been or would be
committed, as Title III's more stringent standard required. Finally, a special FISA court was
required to be appointed, of federal judges designated by the Chief Justice. ^41 They were required
to hear, ex parte, all applications and make all orders. ^42
36
50 U.S.C. § 1805(f)
37
50 U.S.C. § 1805(e)(1)
38
50 U.S.C. § 1806(c)
39
50 U.S.C. § 1804(a)(7)(E)(ii), § 1805(a)(5)
40
50 U.S.C. § 1805(b)
41
50 U.S.C § 1803
42
50 U.S.C § 1805
27
The FISA was essentially enacted to create a secure framework by which the Executive
branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our
national commitment to the Fourth Amendment. It is fully described in United States v. Falvey, 540
F. Supp. 1306 (E.D.N.Y. 1982), where the court held that FISA did not intrude upon the President's
undisputed right to conduct foreign affairs, but protected citizens and resident aliens within this
country, as "United States persons." Id. at 1312.
The Act was subsequently found to meet Fourth Amendment requirements constituting a
reasonable balance between Governmental needs and the protected rights of our citizens, in United
States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987), and United States v. Duggan,743, F.2d 59 (2d Cir.
1984).
Against this background the present program of warrantless wiretapping has been authorized
by the administration and the present lawsuit filed.
V. The Fourth Amendment
The Constitutional Amendment which must first be discussed provides:
The right the of people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
U.S. CONST. Amend. IV.
This Amendment ". . . was specifically propounded and ratified with the memory of . . .
Entick v. Carrington, 95 Eng. Rep. 807 (1765) in mind", stated Circuit Judge Skelly Wright in
Zweibon v. Mitchell, 516 F.2d 594, 618 n.67 (D.C. Circ. 1975) (en banc) (plurality opinion). Justice
Douglas, in his concurrence in the Keith case, also noted the significance of Entick in our history,
28
stating:
For it was such excesses as the use of general warrants and the writs
of assistance that led to the ratification of the Fourth Amendment. In
Entick v. Carrington (citation omitted), decided in 1765, one finds a
striking parallel to the executive warrants utilized here. The
Secretary of State had issued general executive warrants to his
messengers authorizing them to roam about and to seize libelous
material and libellants of the sovereign. Entick, a critic of the Crown,
was the victim of one such general search during which his seditious
publications were impounded. He brought a successful damage
action for trespass against the messengers. The verdict was sustained
on appeal. Lord Camden wrote that if such sweeping tactics were
validated, then the secret cabinets and bureaus of every subject in this
kingdom will be thrown open to the search and inspection of a
messenger, whenever the secretary of state shall think fit to charge,
or even to suspect, a person to be the author, printer, or publisher of
a seditious libel.' (citation omitted) In a related and similar
proceeding, Huckle v. Money (citation omitted), the same judge who
presided over Entick's appeal held for another victim of the same
despotic practice, saying `(t)o enter a man's house by virtue of a
nameless warrant, in order to procure evidence, is worse than the
Spanish Inquisition . . .' See also Wilkes v. Wood (citation omitted),
. . . [t]he tyrannical invasions described and assailed in Entick,
Huckle, and Wilkes, practices which also were endured by the
colonists, have been recognized as the primary abuses which ensured
the Warrant Clause a prominent place in our Bill of Rights. U.S. v.
U.S. District Court, 407 U.S. at 328-329 (Douglas, J., concurring).
Justice Powell, in writing for the court in the Keith case also wrote that:
Over two centuries ago, Lord Mansfield held that common-law
principles prohibited warrants that ordered the arrest of unnamed
individuals who the officer might conclude were guilty of seditious
libel. `It is not fit,' said Mansfield, `that the receiving or judging of
the information should be left to the discretion of the officer. The
magistrate ought to judge; and should give certain directions to the
officer.' (citation omitted).
Lord Mansfield's formulation touches the very heart of the Fourth
Amendment directive: that, where practical, a governmental search
and seizure should represent both the efforts of the officer to gather
evidence of wrongful acts and the judgment of the magistrate that the
collected evidence is sufficient to justify invasion of a citizen's
29
private premises or conversation. Inherent in the concept of a
warrant is its issuance by a `neutral and detached magistrate.'
(citations omitted) The further requirement of `probable cause'
instructs the magistrate that baseless searches shall not proceed. U.S.
v. U.S. District Court, 407 U.S. at 316.
The Fourth Amendment, accordingly, was adopted to assure that Executive abuses of the
power to search would not continue in our new nation.
Justice White wrote in 1984 in United States v. Karo, 468 U.S. 705 (1984), a case involving
installation and monitoring of a beeper which had found its way into a home, that a private residence
is a place in which society recognizes an expectation of privacy; that warrantless searches of such
places are presumptively unreasonable, absent exigencies. Id. at 714-715. Karo is consistent with
Katz where Justice Stewart held that:
`Over and again this Court has emphasized that the mandate of the
(Fourth) Amendment requires adherence to judicial processes,'
(citation omitted) and that searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment - subject only to a few
specifically established and well-delineated exceptions. Katz, 389
U.S. at 357.
Justice Powell's opinion in the Keith case also stated that:
The Fourth Amendment does not contemplate the executive officers
of Government as neutral and disinterested magistrates. Their duty
and responsibility are to enforce the laws, to investigate, and to
prosecute. (citation omitted) But those charged with this
investigative and prosecutorial duty should not be the sole judges of
when to utilize constitutionally sensitive means in pursuing their
tasks. The historical judgment, which the Fourth Amendment
accepts, is that unreviewed executive discretion may yield too readily
to pressures to obtain incriminating evidence and overlook potential
invasions of privacy and protected speech. U.S. v. U.S. District
Court, 407 U.S. at 317.
Accordingly, the Fourth Amendment, about which much has been written, in its few words requires
30
reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon
prior-existing probable cause, as well as particularity as to persons, places, and things, and the
interposition of a neutral magistrate between Executive branch enforcement officers and citizens.
In enacting FISA, Congress made numerous concessions to stated executive needs. They
include delaying the applications for warrants until after surveillance has begun for several types
of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a
single court of judicial experts, and extension of the duration of approved wiretaps from thirty days
(under Title III) to a ninety day term.
All of the above Congressional concessions to Executive need and to the exigencies of our
present situation as a people, however, have been futile. The wiretapping program here in litigation
has undisputedly been continued for at least five years, it has undisputedly been implemented
without regard to FISA and of course the more stringent standards of Title III, and obviously in
violation of the Fourth Amendment.
The President of the United States is himself created by that same Constitution.
VI. The First Amendment
The First Amendment provides:
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
U.S. CONST. Amend. I.
This Amendment, the very first which the American people required to be made to the new
Constitution, was adopted, as was the Fourth, with Entick v. Carrington, and the actions of the star
chamber in mind. As the Court wrote in Marcus v. Search Warrants, 367 U.S. 717 (1961):
31
Historically the struggle for freedom of speech and press in England
was bound up with the issue of the scope of the search and seizure.
. ..
****
This history was, of course, part of the intellectual matrix within
which our own constitutional fabric was shaped. The Bill of Rights
was fashioned against the background of knowledge that unrestricted
power of search and seizure could also be an instrument for stifling
liberty of expression. Marcus, 367 U.S. at 724, 729
As Justice Brennan wrote for the Court in Dombrowski v. Pfister, 380 U.S. 479 (1965), the
appellant organizations had been subjected to repeated announcements of their subversiveness which
frightened off potential members and contributors, and had been harmed irreparably, requiring
injunctive relief. The Louisiana law against which they complained, moreover, had a chilling effect
on protected expression because, so long as the statute was available, the threat of prosecution for
protected expression remained real and substantial.
Judge Wright, in Zweibon, noted that the tapping of an organization's office phone will
provide the membership roster of that organization, as forbidden by Bates v. City of Little Rock, 361
U.S. 516 (1960); thereby causing members to leave that organization, and thereby chilling the
organization's First Amendment rights and causing the loss of membership. Zweibon, 516 F.2d at
634.
A governmental action to regulate speech may be justified only upon showing of a
compelling governmental interest; and that the means chosen to further that interest are the least
restrictive of freedom of belief and association that could be chosen. Clark v. Library of Congress,
750 F.2d 89, 94 (D.C. Cir. 1984).
It must be noted that FISA explicitly admonishes that ". . . no United States person may be
32
considered . . . an agent of a foreign power solely upon the basis of activities protected by the First
Amendment to the Constitution of the United States." 50 U.S.C. §1805(a)(3)(A). See also United
States v. Falvey, 540 F. Supp. at 1310.
Finally, as Justice Powell wrote for the Court in the Keith case:
National security cases, moreover, often reflect a convergence of
First and Fourth Amendment values not present in cases of `ordinary'
crime. Though the investigative duty of the executive may be
stronger in such cases, so also is there greater jeopardy to
constitutionally protected speech. `Historically the struggle for
freedom of speech and press in England was bound up with the issue
of the scope of the search and seizure power,' (citation omitted).
History abundantly documents the tendency of Government
­however benevolent and benign its motives ­ to view with suspicion
those who most fervently dispute its policies. Fourth Amendment
protections become the more necessary when the targets of official
surveillance may be those suspected of unorthodoxy in their political
beliefs. U.S. v. U.S. District Court, 407 U.S. at 313-314.
The President of the United States, a creature of the same Constitution which gave us these
Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required
by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.
VII. The Separation of Powers
The Constitution of the United States provides that "[a]ll legislative Powers herein granted
shall be vested in a Congress of the United States. . . ." ^43 It further provides that "[t]he executive
Power shall be vested in a President of the United States of America." ^44 And that ". . . he shall take
care that the laws be faithfully executed . . . ." ^45
43
U.S. CONST. art. I, § 1
44
U.S. CONST. art. II, § 1
45
U.S. CONST. art. II, § 3
33
Our constitution was drafted by founders and ratified by a people who still held in vivid
memory the image of King George III and his General Warrants. The concept that each form of
governmental power should be separated was a well-developed one. James Madison wrote that:
The accumulation of all powers, legislative, executive, and judiciary,
in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may justly be pronounced the
very definition of tyranny. THE FEDERALIST NO. 47, at 301 (James
Madison).
The seminal American case in this area, and one on which the government appears to rely,
is that of Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) in which Justice Black, for the
court, held that the Presidential order in question, to seize steel mills, was not within the
constitutional powers of the chief executive. Justice Black wrote that:
The founders of this Nation entrusted the law-making power to the
Congress alone in both good and bad times. It would do no good to
recall the historical events, the fears of power and the hopes for
freedom that lay behind their choice. Such a review would but
confirm our holding that this seizure order cannot stand.
Youngstown, 343 U.S. at 589.
Justice Jackson's concurring opinion in that case has become historic. He wrote that,
although the Constitution had diffused powers the better to secure liberty, the powers of the
President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress.
Thus, if the President acted pursuant to an express or implied authorization by Congress, his power
was at it maximum, or zenith. If he acted in absence of Congressional action, he was in a zone of
twilight reliant upon only his own independent powers. Youngstown, 343 U.S. at 636-638. But
"when the President takes measures incompatible with the expressed or implied will of Congress,
his power is at its lowest ebb, for he can rely only upon his own Constitutional powers minus any
Constitutional powers of Congress over the matter." Youngstown, 343 U.S. at 637 (Jackson, J.,
34
concurring).
In that case, he wrote that it had been conceded that no congressional authorization existed
for the Presidential seizure. Indeed, Congress had several times covered the area with statutory
enactments inconsistent with the seizure. He further wrote of the President's powers that:
The example of such unlimited executive power that must have most
impressed the forefathers was the prerogative exercised by George
III, and the description of its evils in the Declaration of Independence
leads me to doubt that they were creating their new Executive in his
image. Continental European examples were no more appealing.
And if we seek instruction from our own times, we can match it only
from the executive powers in those governments we disparagingly
describe as totalitarian. I cannot accept the view that this clause is a
grant in bulk of all conceivable executive power but regard it as an
allocation to the presidential office of the generic powers thereafter
stated. Id. at 641.
After analyzing the more recent experiences of Weimar, Germany, the French Republic, and
Great Britain, he wrote that:
This contemporary foreign experience may be inconclusive as to the
wisdom of lodging emergency powers somewhere in a modern
government. But it suggests that emergency powers are consistent
with free government only when their control is lodged elsewhere
than in the Executive who exercises them. That is the safeguard that
would be nullified by our adoption of the `inherent powers' formula.
Nothing in my experience convinces me that such risks are warranted
by any real necessity, although such powers would, of course, be an
executive convenience. Id. at 652.
Justice Jackson concluded that:
With all its defects, delays and inconveniences, men have discovered
no technique for long preserving free government except that the
Executive be under the law, and that the law be made by
parliamentary deliberations. Youngstown, 343 U.S. at 655 (Jackson,
J., concurring).
Accordingly, Jackson concurred, the President had acted unlawfully.
35
In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed
statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb
and cannot be sustained.
In United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004) a prosecution in which
production of enemy combatant witnesses had been refused by the government and the doctrine of
Separation of Powers raised, the court, citing Mistretta v. United States, 488 U.S. 361 (1989), noted
that it:
"[C]onsistently has given voice to, and has reaffirmed, the central
judgment of the Framers of the Constitution that, within our political
scheme, the separation of governmental powers into three coordinate
Branches is essential to the preservation of liberty." United States v.
Moussaoui, 365 F.3d at 305 citing Mistretta v. United States, 488
U.S. 361, 380 (1989)
Finally, in the case of Clinton v. Jones, 520 U.S. 681 (1997), the separation of powers
doctrine is again discussed and, again, some overlap of the authorities of two branches is permitted.
In that case, although Article III jurisdiction of the federal courts is found intrusive and burdensome
to the Chief Executive it did not follow, the court held, that separation of powers principles would
be violated by allowing a lawsuit against the Chief Executive to proceed. Id. at 701. Mere
burdensomeness or inconvenience did not rise to the level of superceding the doctrine of separation
of powers. Id. at 703.
In this case, if the teachings of Youngstown are law, the separation of powers doctrine has
been violated. The President, undisputedly, has violated the provisions of FISA for a five-year
period. Justice Black wrote, in Youngstown:
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the President.
36
In the framework of our Constitution, the President's power to see
that the laws are faithfully executed refutes the idea that he is to be
a lawmaker. The Constitution limits his functions in the lawmaking
process to the recommending of laws he thinks wise and the vetoing
of laws he thinks bad. And the Constitution is neither silent nor
equivocal about who make laws which the President is to execute.
The first section of the first article says that `All legislative powers
herein granted shall be vested in a Congress of the United States *
* *'
The President's order does not direct that a congressional policy be
executed in a manner prescribed by Congress ­ it directs that a
presidential policy be executed in a manner prescribed by the
President. . . . The Constitution did not subject this law-making
power of Congress to presidential or military supervision or control.
Youngstown, 343 U.S. at 587-588.
These secret authorization orders must, like the executive order in that case, fall. They
violate the Separation of Powers ordained by the very Constitution of which this President is a
creature.
VIII. The Authorization for Use of Military Force
After the terrorist attack on this Country of September 11, 2001, the Congress jointly enacted
the Authorization for Use of Military Force (hereinafter "AUMF") which states:
That the President is authorized to use all necessary and appropriate
force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of international terrorism
against the United States by such nations, organizations or persons. ^46
The Government argues here that it was given authority by that resolution to conduct the TSP
in violation of both FISA and the Constitution.
First, this court must note that the AUMF says nothing whatsoever of intelligence or
46
Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (Sept. 18, 2001)
(reported as a note to 50 U.S.C.A. § 1541)
37
surveillance. The government argues that such authority must be implied. Next it must be noted
that FISA and Title III, are together by their terms denominated by Congress as the exclusive means
by which electronic surveillance may be conducted. Both statutes have made abundantly clear that
prior warrants must be obtained from the FISA court for such surveillance, with limited exceptions,
none of which are here even raised as applicable. Indeed, the government here claims that the
AUMF has by implication granted its TSP authority for more than five years, although FISA's
longest exception, for the Declaration of War by Congress, is only fifteen days from date of such
a Declaration. ^47
FISA's history and content, detailed above, are highly specific in their requirements, and the
AUMF, if construed to apply at all to intelligence is utterly general. In Morales v. TWA, Inc., 504
U.S. 374 (1992), the Supreme Court taught us that "it is a commonplace of statutory construction
that the specific governs the general." Id. at 384. The implication argued by Defendants, therefore,
cannot be made by this court.
The case of Hamdi v. Rumsfeld, 542 U.S. 507 (2004) in which the Supreme Court held that
a United States citizen may be held as an enemy combatant, but is required by the U.S. Constitution
to be given due process of law, must also be examined. Justice O'Connor wrote for the court that:
[D]etention of individuals . . . for the duration of the particular
conflict in which they are captured is so fundamental and accepted an
incident to war as to be an exercise of the "necessary and appropriate
force" Congress has authorized the President to use. Hamdi, 542
U.S. at 518.
She wrote that the entire object of capture is to prevent the captured combatant from
returning to his same enemy force, and that a prisoner would most certainly return to those forces
47
50 U.S.C. § 1811
38
if set free. Congress had, therefore, clearly authorized detention by the Force Resolution. Id. at 518-
519.
However, she continued, indefinite detention for purposes of interrogation was certainly not
authorized and it raised the question of what process is constitutionally due to a citizen who
disputes the enemy combatant status assigned him. Hamdi, 542 U.S. at 521, 524.
Justice O'Connor concluded that such a citizen must be given Fifth Amendment rights to
contest his classification, including notice and the opportunity to be heard by a neutral
decisionmaker. Hamdi, 542 U.S. at 533 (citing Cleveland Board of Education v. Laudermill, 470
U.S. 532 (1985)). Accordingly, her holding was that the Bill of Rights of the United States
Constitution must be applied despite authority granted by the AUMF.
She stated that:
It is during our most challenging and uncertain moments that our
Nation's commitment to due process is most severely tested; and it
is in those times that we must preserve our commitment at home to
the principles for which we fight abroad.
****
Any process in which the Executive's factual assertions go wholly
unchallenged or are simply presumed correct without any opportunity
for the alleged combatant to demonstrate otherwise falls
constitutionally short. Hamdi, 542 U.S. at 532, 537.
Under Hamdi, accordingly, the Constitution of the United States must be followed.
The AUMF resolution, if indeed it is construed as replacing FISA, gives no support to
Defendants here. Even if that Resolution superceded all other statutory law, Defendants have
violated the Constitutional rights of their citizens including the First Amendment, Fourth
Amendment, and the Separation of Powers doctrine.
39
IX. Inherent Power
Article II of the United States Constitution provides that any citizen of appropriate birth, age
and residency may be elected to the Office of President of the United States and be vested with the
executive power of this nation. ^48
The duties and powers of the Chief Executive are carefully listed, including the duty to be
Commander in Chief of the Army and Navy of the United States, ^49 and the Presidential Oath of
Office is set forth in the Constitution and requires him to swear or affirm that he "will, to the best
of my ability, preserve, protect and defend the Constitution of the United States." ^50
The Government appears to argue here that, pursuant to the penumbra of Constitutional
language in Article II, and particularly because the President is designated Commander in Chief of
the Army and Navy, he has been granted the inherent power to violate not only the laws of the
Congress but the First and Fourth Amendments of the Constitution, itself.
We must first note that the Office of the Chief Executive has itself been created, with its
powers, by the Constitution. There are no hereditary Kings in America and no powers not created
by the Constitution. So all "inherent powers" must derive from that Constitution.
We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully
applicable to the Executive branch's actions and therefore it can only follow that the First and Fourth
Amendments must be applicable as well. ^51 In the Youngstown case the same "inherent powers"
argument was raised and the Court noted that the President had been created Commander in Chief
48
U.S. CONST. art. II, § 5
49
U.S. CONST. art. II, § 2[1]
50
U.S. CONST. art. II, § 1[8]
51
See generally Hamdi, 542 U.S. 507 (2004)
40
of only the military, and not of all the people, even in time of war. ^52 Indeed, since Ex Parte
Milligan, we have been taught that the "Constitution of the United States is a law for rulers and
people, equally in war and in peace. . . ." Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866).
Again, in Home Building & Loan Ass'n v. Blaisdell, we were taught that no emergency can create
power. ^53
Finally, although the Defendants have suggested the unconstitutionality of FISA, it appears
to this court that that question is here irrelevant. Not only FISA, but the Constitution itself has been
violated by the Executive's TSP. As the court states in Falvey, even where statutes are not explicit,
the requirements of the Fourth Amendment must still be met. ^54 And of course, the Zweibon opinion
of Judge Skelly Wright plainly states that although many cases hold that the President's power to
obtain foreign intelligence information is vast, none suggest that he is immune from Constitutional
requirements. ^55
The argument that inherent powers justify the program here in litigation must fail.
X. Practical Justifications for Exemption
First, it must be remembered that both Title III and FISA permit delayed applications for
warrants, after surveillance has begun. Also, the case law has long permitted law enforcement
action to proceed in cases in which the lives of officers or others are threatened in cases of "hot
pursuit", border searches, school locker searches, or where emergency situations exist. See
generally Warden v. Hayden, 387 U.S. 294 (1967); Veronia School District v. Acton, 515 U.S. 646
52
See generally Youngstown, 343 U.S. 579 (1952)
53
See generally Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934)
54
See generally Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982)
55
See generally Zweibon, 516 F.2d 594 (D.C. Circ. 1975)
41
(1995); and Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).
Indeed, in Zweibon, Judge Wright enumerates a number of Defendants' practical arguments
here (including judicial competence, danger of security leaks, less likelihood of criminal
prosecution, delay, and the burden placed upon both the courts and the Executive branch by
compliance) and finds, after long and careful analysis, that none constitutes adequate justification
for exemption from the requirements of either FISA or the Fourth Amendment. Zweibon, 516 F.2d
at 641. It is noteworthy, in this regard, that Defendants here have sought no Congressional
amendments which would remedy practical difficulty.
As long ago as the Youngstown case, the Truman administration argued that the cumbersome
procedures required to obtain warrants made the process unworkable. ^56 The Youngstown court made
short shift of that argument and, it appears, the present Defendants' need for speed and agility is
equally weightless. The Supreme Court in the Keith ^57, as well as the Hamdi ^58 cases, has attempted
to offer helpful solutions to the delay problem, all to no avail.
XI. Conclusion
For all of the reasons outlined above, this court is constrained to grant to Plaintiffs the Partial
Summary Judgment requested, and holds that the TSP violates the APA; the Separation of Powers
doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law.
Defendants' Motion to Dismiss the final claim of data-mining is granted, because litigation
of that claim would require violation of Defendants' state secrets privilege.
56
See generally Youngstown, 343 U.S. 579 (1952)
57
See generally U.S. v. U.S. District Court, 407 U.S. 297 (1972)
58
See generally Hamdi, 542 U.S. 507 (2004)
42
The Permanent Injunction of the TSP requested by Plaintiffs is granted inasmuch as each of
the factors required to be met to sustain such an injunction have undisputedly been met. ^59 The
irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment
rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479 (1965). The
irreparable injury conversely sustained by Defendants under this injunction may be rectified by
compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have
prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.
As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):
Implicit in the term `national defense' is the notion of defending
those values and ideas which set this Nation apart. . . . It would
indeed be ironic if, in the name of national defense, we would
sanction the subversion of . . . those liberties . . . which makes the
defense of the Nation worthwhile. Id. at 264.
IT IS SO ORDERED.
Date: August 17, 2006 s/Anna Diggs Taylor
Detroit, Michigan ANNA DIGGS TAYLOR
UNITED STATES DISTRICT JUDGE
59
It is well-settled that a plaintiff seeking a permanent injunction must demonstrate: (1) that it has suffered
an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for
that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v.
MercExchange, L.L.C. 126 S.Ct. 1837, 1839 (2006). Further, "[a] party is entitled to a permanent injunction if it can
establish that it suffered a constitutional violation and will suffer "continuing irreparable injury" for which there is
no adequate remedy at law." Women's Medical Professional Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006).
43
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Memorandum Order was served upon counsel of record via the Court's ECF
System to their respective email addresses or First Class U.S. mail disclosed on the Notice of Electronic Filing on
August 17, 2006.
s/Johnetta M. Curry-Williams
Case Manager
44

This case also touches on the balance that applies to NSA surveillance suits, in that it
probes a balance between the 1st amendment and government secrecy. I noted the Judge's comment
on Page 40, "As an initial matter, it is necessary to confront the government's proposed categorical rule
that espionage statutes cannot implicate the First Amendment. This contention overreaches."

The brief discussion following that comment might be used by the NSA wiretapping plaintiffs to
support their contention (adopted by the trial judge in California) that the government cannot
obtain dismissal at the summary (initial) phase of that now consolidated case.

Case 1:05-cr-00225-TSE Document 337 Filed 08/09/2006 Page 1 of 68
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA, )
)
v. ) Case No. 1:05cr225
)
)
STEVEN J. ROSEN )
KEITH WEISSMAN )
MEMORANDUM OPINION
In this Espionage Act prosecution, defendants Steven Rosen and Keith Weissman have
been charged in Count I of a superseding indictment with conspiring to transmit information
relating to the national defense ^1 to those not entitled to receive it, in violation of 18 U.S.C.
§ 793(g). Defendants, by pretrial motion, attack the constitutionality of § 793 in three ways.
First, they argue that the statute, as-applied to them, is unconstitutionally vague in violation of
the Due Process Clause of the Fifth Amendment. Second, they argue that the statute, as-applied
to them, abridges their First Amendment right to free speech and their First Amendment right to
petition the government. Third, defendants assert the First Amendment rights of others by
attacking the statute as facially overbroad. In the alternative, defendants urge the Court to avoid
these constitutional issues by interpreting the statute as applying only to the transmission of
tangible items, i.e., documents, tapes, discs, maps and the like.
In addition, defendant Rosen has been charged in Count III of the superseding indictment
with aiding and abetting the transmission of information relating to the national defense to one
1
The phrase "information relating to the national defense" will sometimes be referred to
herein as NDI.
-1-
Case 1:05-cr-00225-TSE Document 337 Filed 08/09/2006 Page 2 of 68
not entitled to receive it, in violation of 18 U.S.C. § 793(d) and 2. He seeks dismissal of this
count on the ground that the facts alleged in the superseding indictment in support of this count
are legally insufficient.
I.^2
During the period of the conspiracy alleged in Count I, defendants Rosen and Weissman
were employed by the American Israel Public Affairs Committee (AIPAC) in Washington, D.C.
AIPAC is a pro-Israel organization that lobbies the United States executive and legislative
branches on issues of interest to Israel, especially U.S. foreign policy with respect to the Middle
East. Rosen was AIPAC's Director of Foreign Policy Issues and was primarily engaged in
lobbying officials of the executive branch with policy-making authority over issues of interest to
AIPAC. Rosen did not have a security clearance during the period of the alleged conspiracy, and
had not held a security clearance since his employment with the RAND Corporation in the late
1970s and early 1980s. Indeed, Rosen's security clearance had been terminated on or about July
6, 1982. Defendant Weissman was AIPAC's Senior Middle East Analyst and worked closely
with Rosen in lobbying the executive branch of the U.S. government. Weissman has never held
a security clearance. Alleged co-conspirator Lawrence Franklin worked on the Iran desk in the
Office of the Secretary of the Department of Defense (DOD) and held a top secret security
clearance during the alleged conspiracy. ^3
2
As is appropriate in considering a motion to dismiss brought pursuant to Rule 12(b),
Fed.R.Crim.P., the facts set forth herein are derived exclusively from the superseding indictment.
United States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002).
3
On October 5, 2005, Franklin pled guilty to one count of conspiracy to communicate
national defense information to one not entitled to receive it, in violation of 18 U.S.C. §§ 793(d)
and (g), and to one count of conspiracy to communicate classified information to an agent of a
-2-
Case 1:05-cr-00225-TSE Document 337 Filed 08/09/2006 Page 3 of 68
In general, the superseding indictment alleges that in furtherance of their lobbying
activities, defendants (i) cultivated relationships with government officials with access to
sensitive U.S. government information, including NDI, ^4 (ii) obtained the information from these
officials, and (iii) transmitted the information to persons not otherwise entitled to receive it,
including members of the media, foreign policy analysts, and officials of a foreign government.
The government's recitation of the acts constituting the conspiracy begins on April 13,
1999, when Rosen told an unnamed foreign official (FO-1) that he had "picked up an extremely
sensitive piece of intelligence" which he described as "codeword protected intelligence." Rosen
proceeded to relate this piece of intelligence, which concerned terrorist activities in Central Asia,
to the foreign official. Rosen and FO-1 continued this discussion over lunch a few weeks later.
The superseding indictment alleges further that Weissman's role in the conspiracy became
apparent on June 11, 1999, when Weissman told the same foreign official that he had obtained a
"secret FBI, classified FBI report" relating to the Khobar Towers bombing from three different
sources, including a member of the United States government. Later that day, Weissman told
FO-1 that he had interested a member of the media in the report.
According to the superseding indictment, roughly eighteen months later, on December 12,
2000, Rosen and Weissman met with a United States government official (USGO-1) who had
access to classified information relating to U.S. strategy pertaining to a certain Middle East
country. Following this meeting, Rosen allegedly had a conversation with a member of the
foreign government in violation of 50 U.S.C. § 783 and 18 U.S.C. § 371.
4
The detailed content of the alleged NDI referred to in this Memorandum Opinion is the
subject of sealed proceedings underway pursuant to the Classified Information Procedures Act
(CIPA), 18 U.S.C. App. 3, and is therefore not disclosed here.
-3-
Case 1:05-cr-00225-TSE Document 337 Filed 08/09/2006 Page 4 of 68
media in which he communicated classified information relating to the U.S. government's
deliberations on its strategy towards that particular Middle Eastern country.
The next overt act in furtherance of the alleged conspiracy occurred over one year later,
when, on January 18, 2002, Rosen met with another U.S. government official (USGO-2). After
this meeting, Rosen prepared a memorandum referencing classified information provided by
USGO-2 and distributed this memorandum to AIPAC staff. A few days later, Rosen relayed
some of the information provided by USGO-2 to a foreign national. Rosen met again with
USGO-2 on March 12, 2002 and discussed classified information regarding Al-Qaeda. Rosen
allegedly disclosed this classified information to a fellow AIPAC employee the next day, and to
another foreign embassy official (FO-2) the day after that.
In August 2002, Rosen was introduced to Franklin through a contact at the DOD. The
two agreed to meet on August 21, 2002, but the meeting was postponed. Rosen, Weissman,
Franklin and another DOD employee finally met nearly six months later, on February 12, 2003.
At this meeting, Franklin disclosed to Rosen and Weissman information relating to a classified
draft internal United States government policy document concerning a certain Middle Eastern
country. He told Rosen and Weissman that he had prepared a separate document based on the
draft policy document. The three alleged co-conspirators met again on March 10, 2003 at Union
Station in Washington, D.C. The three men conducted the meeting in successive restaurants and
ended the meeting in an empty restaurant. Later that week, Rosen met with FO-2 and discussed
the same draft internal policy document that Franklin had discussed with Rosen and Weissman.
Both Rosen and Weissman had similar conversations with FO-1 later that same day. Rosen also
called a senior fellow at a Washington, D.C. think tank and discussed the information concerning
-4-
Case 1:05-cr-00225-TSE Document 337 Filed 08/09/2006 Page 5 of 68
the government's internal policy deliberations that had been provided by Franklin.
A week after his meeting with Rosen and Weissman at Union Station, Franklin faxed to
Rosen's AIPAC office fax machine a document he had produced which contained information
derived from the appendix of the U.S. draft internal policy document Franklin had discussed in
his February meeting with Rosen and Weissman. The next day, Rosen discussed this
information with a member of the media, prefacing his discussion with the statement, "I'm not
supposed to know this." Rosen had a similar discussion with another member of the media on
May 30, 2003.
In June 2003, Franklin, Rosen and Weissman arranged another lunch meeting. This
meeting took place on June 26, 2003 at a restaurant in Arlington, Virginia. At the outset of the
meeting Rosen told Franklin that he understood the difficult "constraints" under which Franklin
was meeting, but notwithstanding these constraints, the three men proceeded to discuss the same
draft internal policy document, as well as a newspaper article discussing the same classified
document. The lunchtime discussion soon broadened to include internal United States policy
deliberations, and at some point during the lunch, Franklin allegedly disclosed to Rosen and
Weissman classified information relating to potential attacks on United States forces in Iraq. He
told Rosen and Weissman that the information was "highly classified" and asked them not to use
it. Later that day, Rosen described this information as "quite a story" and referring to Franklin,
told Weissman "that this channel is one to keep wide open insofar as possible." Consistent with
this advice, Weissman took Franklin to a major league baseball game a few days later.
At some point over the next year, Franklin was approached by law enforcement and he
thereafter agreed to cooperate with the Federal Bureau of Investigation (FBI) in its investigation
-5-
Case 1:05-cr-00225-TSE Document 337 Filed 08/09/2006 Page 6 of 68
of Rosen and Weissman. On or about July 9, 2004 Weissman and Franklin, now acting as a
cooperating witness, agreed to meet. At this meeting Franklin disclosed to Weissman NDI
involving United States intelligence related to certain Middle Eastern countries. On July 21,
2004, Franklin again met with Weissman and allegedly disclosed to him classified national
defense information concerning a foreign government's covert actions in Iraq. Before disclosing
the information, Franklin warned Weissman that the information he was about to receive was
highly classified "Agency stuff" and that Weissman could get into trouble by having the
information. Following the meeting, Weissman returned to his office and related to Rosen what
he had learned from Franklin. During the course of the day, Rosen and Weissman disclosed this
information to another foreign official (FO-3) and a journalist, describing the information as
"Agency information" and telling the journalist that the source of the information was "an
American intelligence source" who was "100 percent credible." Weissman also told a fellow
AIPAC employee what he had learned earlier that day from Franklin. Nearly a month later, on
August 20, 2004, Weissman again disclosed to a journalist the classified national defense
information he had obtained from Franklin during their July 21, 2004 meeting.
Within weeks of Weissman's July 21, 2004 meeting with Franklin, the FBI contacted
both Rosen and Weissman and asked them whether Franklin had ever disclosed classified
information to either of them. Both Rosen and Weissman admitted knowing Franklin, but each
denied that Franklin had ever disclosed classified information to them. After his interview, on
August 27, 2004, Rosen contacted FO-2 and asked to meet with FO-2 and FO-3 to discuss a
"serious matter." Rosen also told FO-2 that the FBI had "made some allegations which are
important" and added that he did not want to "discuss it on the phone" and did not want to go to
-6-
Case 1:05-cr-00225-TSE Document 337 Filed 08/09/2006 Page 7 of 68
FO-2's embassy office. Accordingly, Rosen and FO-2 met later that day in a restaurant, and then
proceeded to talk outside the restaurant where their conversation could not be monitored. These
facts constitute the sum of Rosen's and Weissman's offense conduct as alleged in Count One of
the superseding indictment.
The superseding indictment also charges Rosen with aiding and abetting Franklin in the
latter's violation of 18 U.S.C. § 793(d). Specifically, Rosen is alleged to have aided and abetted
Franklin's March 17, 2003 transmission by fax of the document he had created from the
classified draft internal policy document related to a certain Middle Eastern country.
Rosen and Weissman have challenged the constitutionality of Count I of the superseding
indictment on three separate but related grounds. First, the defendants argue that the
government's application of 18 U.S.C. § 793(e) in this prosecution violates the Fifth
Amendment's Due Process Clause under the vagueness doctrine because the statute's
indeterminate language failed to provide these defendants with adequate warning that their
conduct was proscribed. In addition to this as-applied vagueness claim, defendants make two
arguments based on the guarantees of the First Amendment. First, they argue that their conduct,
as alleged in the superseding indictment, may not be proscribed without transgressing the First
Amendment's guarantees of free speech and the right to petition the government. Second, even
assuming the statute's constitutional application here, they raise a facial challenge to the statute
pursuant to the First Amendment's well-recognized overbreadth doctrine. Finally, in a separate
motion to dismiss, Rosen challenges the sufficiency of the allegation that he aided and abetted
Franklin's violation of § 793(d). Each of these contentions is separately addressed.
II.
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The operative statute at issue in defendant's constitutional challenge is codified at 18
U.S.C. § 793 and provides, in pertinent part, as follows:
(d) Whoever, lawfully having possession of, access to, control over, or
being entrusted with any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, instrument,
appliance, or note relating to the national defense, or information relating to the
national defense which information the possessor has reason to believe could be
used to the injury of the United States or to the advantage of any foreign nation,
willfully communicates, delivers, transmits or causes to be communicated,
delivered, or transmitted or attempts to communicate, deliver, transmit or cause to
be communicated, delivered or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it on demand to the
officer or employee of the United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over
any document, writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, or note relating to
the national defense, or information relating to the national defense which
information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicates,
delivers, transmits or causes to be communicated, delivered, or transmitted, or
attempts to communicate, deliver, transmit or cause to be communicated,
delivered, or transmitted the same to any person not entitled to receive it, or
willfully retains the same and fails to deliver it to the officer or employee of the
United States entitled to receive it . . . .
Shall be fined under this title or imprisoned not more than ten years, or
both.
(g) If two or more persons conspire to violate any of the foregoing
provisions of this section, and one or more of such persons do any act to effect the
object of the conspiracy, each of the parties to such conspiracy shall be subject to
the punishment provided for the offense which is the object of the conspiracy.
18 U.S.C. § 793. A brief history of this statute provides necessary context and helps illuminate
the analysis of the questions presented.
For much of this nation's history, those who violated the nation's trust by engaging in
unauthorized disclosures of government secrets were prosecuted under generally applicable
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statutes punishing treason, unlawful entry into military bases, and theft of government property.
See Harold Edgar and Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense
Information, 73 Colum. L. Rev. 929, 940 (1973) [hereinafter Espionage Statutes]. The first
statute specifically intended to protect government secrets, and § 793's progenitor, was the
Defense Secrets Act of 1911. ^5 In terms that have survived largely unaltered for nearly a century,
it prohibited the willful communication of knowledge concerning "anything connected with the
5
Section 1 of this statute provided--
[1] That whoever, for the purpose of obtaining information respecting the national
defense, to which he is not lawfully entitled, goes upon any vessel, or enters any
navy-yard, naval station, fort, battery, torpedo station, arsenal camp, factory,
building, office, or other place connected with the national defense, owned or
constructed or in process of construction by the United States, or in the possession
or under the control of the United States or any of its authorities or agents, and
whether situated within the United States or in any place non-contiguous to but
subject to the jurisdiction thereof; [2] or whoever, when lawfully or unlawfully
upon any vessel, or in or near any such place, without proper authority, obtains,
takes, or makes, or attempts to obtain, take, or make any document, sketch,
photograph, photographic negative, plan, model, or knowledge of anything
connected with the national defense to which he is not entitled; [3] or whoever,
without proper authority, receives or obtains, or undertakes or agrees to receive or
obtain, from any person, any such document, sketch, photograph, photographic
negative, plan, model, or knowledge, knowing the same to have been so obtained,
taken or made; [4] or whoever, having possession of or control over any such
document, sketch, photograph, photographic negative, plan, model, or knowledge,
willfully and without proper authority, communicates or attempt to communicate
the same to any person not entitled to receive it, or to whom the same ought not,
in the interest of the national defense, be communicated at that time; [5] or
whoever, being lawfully intrusted with any such document, sketch, photograph,
photographic negative, plan, model, or knowledge, willfully and in breach of his
trust, so communicates or attempts to communicate the same, shall be fined not
more than one thousand dollars, or imprisoned not more than one year, or both.
36 Stat. 1804 (1911). Section 2 of this statute related to communication of information
connected with the national defense to agents of a foreign government, and is the obvious
precursor to 18 U.S.C. § 794.
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national defense" to one "not entitled to receive it." The statute did not define what was
"connected to the national defense," nor did it provide a clear basis for determining who was
"entitled to receive" that knowledge. Notwithstanding these deficiencies, the drafters of the next
legislative attempt to protect government secrets, which became known as the Espionage Act of
1917, were generally content to adopt the basic language of the 1911 statute. Thus, title I, section
1, subsection (d) of the Espionage Act provided that--
whoever, lawfully or unlawfully having possession of, access to, control over, or
being intrusted with any document, writing, code book, signal book, sketch,
photograph, photographic negative, blue print, plan, map, model, instrument,
appliance, or note relating to the national defense, wilfully communicates or
transmits or attempts to communicate or transmit the same to any person not
entitled to receive it, or willfully retains the same and fails to deliver it on demand
to the officer or employee of the United States entitled to receive it. . . . shall be
punished by a fine of not more than $10,000, or by imprisonment for not more
than two years, or both.
See 40 Stat. 217 (June 15, 1917). ^6 This provision, which is the precursor to both §§ 793(e) and
(d), was altered in three material respects when Congress last amended the statute as part of the
Internal Security Act of 1950. See 64 Stat. 987 (Sept. 23, 1950). First, Congress removed those
with unlawful possession of NDI from the ambit of subsection (d), and created subsection (e)
which focuses on this subset of persons. See id. Second, Congress expanded the category of
what could not be communicated pursuant to §§ 793(d) and (e) to include "information relating
to the national defense," but modified this additional item by adding a scienter requirement to the
effect that "the possessor has reason to believe [the information] could be used to the injury of
the United States or to the advantage of any foreign nation." See id. Finally, in contrast to
6
This provision of the Espionage Act was codified in 1948 at 18 U.S.C. § 793. See Act of
June 25, 1948, 62 Stat. 736, 737.
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subsection (d), Congress drafted subsection (e) to require one with unlawful possession of
national defense information to return it to the government even in the absence of a demand for
that information. See id.; see also New York Times Co. v. United States, 403 U.S. 713, 738 n. 9
(1971) (White, J., concurring) (citing S. Rep. No. 81-2369, at 8-9 (1950)).
Over the years, numerous commentators have criticized these provisions as excessively
complex, confusing, indeed impenetrable. ^7 Yet, despite repeated calls for reform of these
provisions in the more than half century since their last amendment in 1950, the statute has
remained unchanged.
Section 793's litigation history is sparse, but nonetheless both pertinent and instructive.
The modest number of reported decisions reflect that § 793 prosecutions are relatively rare and
that over the years, the statute has successfully weathered several constitutional challenges on
both vagueness and First Amendment grounds. While the Supreme Court has never considered a
§ 793(d) or (e) case, it has considered and rejected a vagueness challenge to the phrase
"information relating to the national defense" as used in a related espionage statute. See Gorin v.
7
See New York Times Co. v. United States, 403 U.S. 713, 754 (1971) (Harlan, J.,
dissenting) (describing § 793(e) as a "singularly opaque statute."); United States v. Morison, 844
F.2d 1057, 1086 (4th Cir. 1988) (Phillips, J., concurring) (urging Congress to pass "carefully
drawn legislation" replacing § 793). See generally, Harold Edgar and Benno C. Schmidt,
Curtiss-Wright Comes Home: Executive Power and National Security Secrecy, 21 Harv. C.R.-
C.L. L. Rev. 349, 393 & n. 159 (1986) ("The espionage statutes are incomprehensible if read
according to the conventions of legal analysis of text, while paying fair attention to legislative
history. This is especially true of the sections relating to publication of defense information and
the preliminary acts of information-gathering and communication."); Anthony Lewis, National
Security: Muting the "Vital Criticism," 34 U.C.L.A. 1687, 1698 (1987) ("The espionage sections
of the Federal Criminal Code are a singularly impenetrable warren of provisions originally
passed by Congress under the stresses of World War I."); Edgar and Schmidt, Espionage
Statutes, 73 Colum. L. Rev. at 998 (referring to §§ 793(d) and (e) as "the most confusing and
complex of all the federal espionage statutes.").
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United States, 312 U.S. 19 (1941). At the circuit level, authority is less sparse, but still relatively
scarse. Particularly pertinent here is United States v. Morison, 844 F.2d 1057 (4th Cir. 1988), in
which the Fourth Circuit denied vagueness and First Amendment challenges to § 793 by a naval
intelligence officer who transmitted classified satellite photographs of Soviet naval preparations
to a British periodical. The Fourth Circuit has also considered and rejected vagueness challenges
to § 793 and related espionage statutes in other cases. See United States v. Truong, 629 F.2d
908, 918-19 (4th Cir. 1980) (rejecting vagueness challenge based on lack of evil intent in term
willfulness); United States v. Dedeyan, 584 F.2d 36, 40 (4th Cir. 1978) (rejecting vagueness and
overbreadth challenges to the term "relating to the national defense" as used in § 793(f)); see also
United States v. McGuinness, 35 M.J. 149, (C.M.A. 1992) (rejecting a vagueness challenge to the
term "unauthorized" as used in § 793(e)).
Aware of these unsuccessful vagueness challenges to § 793, defendants attempt to
distinguish their as-applied challenges by arguing that the instant prosecution is unprecedented in
that it involves the alleged oral retransmission of information relating to the national defense,
whereas other challenges to § 793 have involved the transmission of tangible items such as
documents, or photographs. Indeed, a survey of the prosecutions under the modern version of
§ 793(e) discloses no prosecutions for the oral retransmission of information relating to the
national defense. ^8 It is worth noting, however, that there have been prosecutions for the oral
8
See, e.g., United States v. Poulson, 41 F.3d 1330, 1333 (9th Cir. 1994) (charged with the
willful retention of stolen computer tapes containing air tasking orders); United States v. Pollard,
959 F.2d 1011, 1015-16 (4th Cir. 1992) (transmission of photocopied documents to Israeli
intelligence services); United States v. Morison, 844 F.2d 1057, 1061 (4th Cir. 1988)
(transmission of stolen documents and satellite photos to British news magazine); United States
v. Zettl, 835 F.2d 1059, 1060 (4th Cir. 1987) (delivery of classified Navy documents); United
States v. Walker, 796 F.2d 43, 45 (4th Cir. 1986) (transmittal of Navy documents containing
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transmission of information relating to the national defense under 18 U.S.C. § 794 and its
predecessor statutes, which prohibit the communication of information relating to the national
defense to an agent of a foreign government. ^9 In addition, one case has been brought under both
§ 794(a) and § 793(d) for the oral transmission of national defense information to the Soviets.
See United State v. Smith, 592 F.Supp. 424, 427 (E.D.Va. 1984). Whether the fact that no person
has been prosecuted under § 793(e) for the oral transmission of information relating to the
national defense has any constitutional significance is addressed below.
III.
Before addressing defendants' various constitutional challenges, it is first necessary to
address the defendants' statutory argument that the word "information" as used in § 793 should
be construed as including only tangible information. This construction would preclude
application of the statute to individuals who, like defendants, transmit NDI orally. If so
construed, of course, § 793 would not reach the conduct alleged here and therefore obviate the
classified information to the Soviets); United States v. Truong Ding Hung, 629 F.2d 908, 911-12
(4th Cir. 1980) (transmission of documents relating to the national defense to Socialist Republic
of Vietnam during the 1977 Paris peace negotiations); United States v. Kampiles, 609 F.2d 1233,
1235 (7th Cir. 1980) (delivery of military technical manual to the Soviets); United States v. Lee,
589 F.2d 980, 982-83 (9th Cir. 1999) (transmittal of documents relating to a covert
communications satellite study to the Soviets); United States v. Doe, 455 F.2d 1270, 1272 (1st
Cir. 1972) (transmittal of the "Pentagon Papers" ultimately published by the New York Times
and the Washington Post); United States v. Ntube, No. 93-0322-2, 1996 WL 808068 (D.D.C.
1996) (delivery of classified documents to certain African countries).
9
See, e.g., Gorin v. United States, 111 F.2d 712, 715 (9th Cir. 1940) aff'd 312 U.S. 19
(1940) (describing the oral transmission of the substance of reports); United States v. Pelton, 835
F.2d 1067, 1070-71 (4th Cir. 1987) (oral transmission of information relating to the national
defense to Soviets); United States v. Rosenberg, 195 F.2d 583, 588 (2d Cir. 1952) (describing the
transmission of documents, writings, sketches, notes and information relating to the national
defense to the Soviets).
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need to address the defendants' constitutional challenges.
The phrase "information relating to the national defense" is not defined by the statute, and
therefore, as with any issue of statutory interpretation, the appropriate place to begin the analysis
is with the plain meaning of the statute's words and the context in which they are used. See
United States v. Groce, 398 F.3d 679, 681 (4th Cir. 2005). The word "information" is a general
term, the plain meaning of which encompasses knowledge derived both from tangible and
intangible sources. See, e.g., The American Heritage College Dictionary 698 (1993) (defining
information as "knowledge derived from study, experience, or instruction" and "knowledge of a
specific event or situation; intelligence."). Defendants do not dispute the plain meaning of the
term "information," but argue instead that plain meaning cannot control because construing the
word "information" as encompassing intangible information renders the statute's retention
clauses absurd. ^10 And, it is well-established that the plain meaning of a term may should not
control if it leads to an absurd result. See Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000). In brief, the defendants' argument proceeds as follows: The
operative provisions in this prosecution, § 793(d) and (e), prohibit both (1) the communication of
any document, note, map, etc., or information relating to the national defense to one not entitled
to receive it, and (2) the willful retention of "the same." While it is logical to punish the
communication of intangible information, it is illogical to punish the retention of intangible
information since a person cannot avoid remembering something he learned, thereby retaining it,
10
Subsection (d)'s retention clause makes criminally liable anyone who "willfully retains
[an item related to the national defense] and fails to deliver it on demand to the officer or
employee of the United States entitled to receive it." 18 U.S.C. § 793(d). Subsection (e) contains
a similar clause, but does not require that a demand be made for the item related to the national
defense. 18 U.S.C. § 793(e).
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nor can a person deliver their memory to one entitled to receive it, as the statute's retention
clauses would seem to require. Assuming, reasonably enough, that the two clauses apply to "the
same" type of information, defendants assert that since it would be illogical to construe the term
"information" as including intangible information in the retention clause, the communication
clause must also apply only to tangible information. At the very least, defendants argue, this
reflects that an ambiguity infects the statute, requiring the application of the canon of
constitutional avoidance, ^11 the rule of lenity, ^12 and the related canons of ejusdem generis and
noscitur a sociis. ^13
While not without superficial appeal, this argument ultimately fails to persuade. A closer
look at § 793's history reveals that the absurdity identified by the defendants is a result of
inadvertence and careless drafting, and not an indication that the drafters intended to restrict the
prohibition of the first clause to tangible items. ^14 The grandfather of subsections (d) and (e) of
11
The canon of constitutional avoidance counsels that "when deciding which of two
plausible statutory constructions to adopt, a court must consider the necessary consequences of
its choice. If one of them would raise a multitude of constitutional problems, the other should
prevail . . . ." See Clark v. Martinez, 543 U.S. 371, 381-82 (2005)
12
See Pasquantino v. United States, 544 U.S. 349, 383 (2005) ("[W]hen confronted with
`two rational readings of a criminal statute, one harsher than the other, we are to choose the
harsher only when Congress has spoken in clear and definite language.'") (quoting McNally v.
United States, 483 U.S. 350, 359-60 (1987)).
13
See United States v. Andrews, 441 F3d 220, 223 (4th Cir. 2006) ("According to the
ejusdem generis canon, `[a] general word or phrase [that] follows a list of specifics . . . will be
interpreted to include only items of the same type as those listed.'"); Id. at 224 ("According to
the noscitur a sociis canon, the meaning of an undefined word or phrase `should be determined
by the words immediately surrounding it.'"). In this respect, defendants argument is that because
§§ 793(d) and (e) prohibit the retransmission of a long list of tangible items, "information"
should also be limited to information contained in tangible form.
14
See generally, Edgar and Schmidt, Espionage Statutes, 73 Colum. L. Rev. at 1050.
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§ 793, the fourth clause of the Defense Secrets Act of 1911, clearly prohibited the willful
communication of any "knowledge of anything connected with the national defense." ^15 When
this provision was reenacted as part of the Espionage Act of 1917, the drafters added the
retention clause, and rather than again listing the items relating to the national defense that could
not be retained, the drafters simply referred to those items listed in the first clause by using the
phrase "the same." In an apparent attempt to avoid the absurdity noted above, the drafters simply
dropped the term "knowledge" from the list of items detailed in the first clause. See 40 Stat. 217
(1917). See generally Edgar and Schmidt, Espionage Statutes, 73 Colum. L. Rev. at 1012. Thus,
had the defendants been charged under section 1(d) of the Espionage Act of 1917, their argument
that the statute does not cover oral transmissions would be more persuasive. But in 1950, the
Congressional drafters of the current provision, concerned over this potential loophole in the
statute's coverage, attempted to fix it by adding to the statute the phrase "information relating to
the national defense which the possessor has reason to believe could be used to the injury of the
United States or to the advantage of a foreign nation." See generally Edgar and Schmidt,
Espionage Statutes, 73 Colum. L. Rev. at 1021-31, 1050. This formulation was not new, but was
derived from similar language in section 2 of the Espionage Act, the predecessor to 18 U.S.C.
§ 794. As used in that provision, the term "information related to the national defense" was
understood to apply to information existing in both tangible and intangible form, ^16 and it is
15
36 Stat. 1804 (1911). See supra note 4.
16
See Gorin v. United States, 111 F.2d 712, 716 (9th Cir. 1940). The phrase "information
related to the national defense" as used in 18 U.S.C. § 794 continues to be understood as
including orally transmitted information. See Rosenberg, 195 F.2d 588; Pelton, 835 F.2d 1070-
71.
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reasonable to conclude that the 1950 drafters intended to adopt the same meaning. As the Fourth
Circuit has stated in relation to these two provisions, "[w]hen a statute is a part of a larger Act as
these statutes are, the starting point for ascertaining legislative intent is to look to other sections
of the Act in pari materia with the statute under review." United States v. Morison, 844 F.2d
1057, 1064 (4th Cir. 1988). Indeed, this conclusion is buttressed by a statement of the district
court in Morison, in which it stated that the statute--
defines all types of tangibles: "any document, writing, code book, signal book,
sketch, photograph, photographic negative, blueprint, plan, map, model,
instrument, appliance, or note relating to the national defense," and also describes
intangibles: "information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the United States or
to the advantage of any foreign nation."
See United States v. Morison, 622 F.Supp. 1009, 1011 (D.Md. 1985) (emphasis added); see also
Edgar and Schmidt, Espionage Statutes, 73 Colum. L. Rev. at 1021.
Because construing the term "information" as including both tangible and intangible
information is consistent with the plain meaning of the term and supported by the legislative
history, it is not necessary to resort to the canon of constitutional avoidance or to the rule of
lenity, which both apply only when choosing between two equally plausible interpretations. See
Clark, 543 U.S. at 385; Pasquantino, 544 U.S. at 383. Nor is application of the canons of
ejusdem generis or noscitur a sociis appropriate, since it is clear that Congress's intent in
amending the statute in 1950 was to plug the loophole created when the term "knowledge" was
dropped from the Espionage Act.
Thus, because the word "information" as used in the first clause of the statute applies
both to tangible and intangible information, and because defendants are not charged under the
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second clause, the absurdity pointed out by the defendants is of no consequence to the present
prosecution. For this reason, it is necessary to address the defendants' constitutional challenges.
IV.
Defendants' first constitutional challenge to the statute is based on the principle that the
Due Process clause of the Fifth Amendment prohibits punishment pursuant to a statute so vague
that "men of common intelligence must necessarily guess at its meaning and differ as to its
application." United States v. Lanier, 520 U.S. 259, 266 (1997) (quoting Connally v. General
Constr. Co., 269 U.S. 385, 391 (1926)). Specifically, defendants allege that, as-applied to them,
both §§ 793(d) and (e) are fatally vague with respect to determining: (1) the content of
information covered by the phrase "information relating to the national defense," and (2) the
individuals "not entitled to receive" that information.
The vagueness doctrine is premised on the principle that due process of law requires the
government to provide potential defendants fair warning that their conduct may be proscribed,
and is further animated by the concern that vague statutes may encourage arbitrary and
discriminatory enforcement. See City of Chicago v. Morales, 527 U.S. 41, 56 (1999). Thus, to
take a well known example of a statute that failed to provide adequate notice, the Supreme Court
found unconstitutionally vague a statute making it "unlawful for any person willfully . . . to make
any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries"
because it failed to provide an "ascertainable standard of guilt . . . adequate to inform persons
accused of violation thereof of the nature and cause of the accusation against them." United
States v. L. Cohen Grocery Co., 255 U.S. 81, 90 (1921). The Supreme Court relied on the
vagueness doctrine's second rationale in Kolender v. Lawson, 461 U.S. 352 (1983), where it
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struck down a penal statute requiring a person stopped for loitering to provide police officers
with "credible and reliable identification" because it failed to "establish minimal guidelines to
govern law enforcement" and therefore "furnishes a convenient tool for harsh and discriminatory
enforcement by local prosecuting officials against particular groups deemed to merit their
displeasure." Id. at 360 (internal quotations and citations omitted). See also Morales, 527 U.S. at
60. ("The broad sweep of the ordinance also violates `the requirement that a legislature establish
minimal guidelines to govern law enforcement.'") (quoting Kolender, 461 U.S. at 358).
While acknowledging these general principles, courts applying the vagueness doctrine
also recognize that the language of any statute will possess some level of indeterminacy, and
therefore courts sensibly do not require the scope of a criminal statute to be defined with perfect
precision and clarity. In the words of the Fourth Circuit,
It is sufficient . . . to satisfy requirements of "reasonable certainty," that while "the
prohibitions of a statute may not satisfy those intent on finding fault at any cost,
they are set out in terms that the ordinary person exercising ordinary common
sense can sufficiently understand and comply with, without sacrifice to the public
interest."
United States v. Morison, 844 F.2d 1057, 1071 (4th Cir. 1988) (quoting Arnett v. Kennedy, 416
U.S. 134, 159 (1974)). It is also well established that "clarity at the requisite level may be
supplied by judicial gloss on an otherwise uncertain statute." Lanier, 520 U.S. at 266; see also
Morison, 844 F.2d at 1071 ("all vagueness may be corrected by judicial construction which
narrows the sweep of the statute within the range of reasonable certainty."). In sum, courts
considering vagueness challenges require that criminal statutes "either standing alone or as
construed, make reasonably clear at the relevant time that the defendant's conduct was criminal."
Lanier, 520 U.S. at 266.
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Finally, and especially pertinent to the present challenge, there exists a generally
recognized proposition that an otherwise unconstitutionally vague statute can survive a challenge
if it contains a specific intent requirement. As the Supreme Court cogently put it: "[W]here the
punishment imposed is only for an act knowingly done with the purpose of doing that which the
statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the
act which he does is a violation of law." Screws v. United States, 325 U.S. 91, 102 (1945).
Thus, an otherwise intolerably vague statute may avoid a finding of unconstitutional vagueness if
its application is contingent on the accused's knowledge that he is committing an unlawful act.
These principles govern defendants' vagueness challenge.
A.
Defendants first argue that the content of the information described by the phrase
"information relating to the national defense" is insufficiently clear when such information is
transmitted orally. In this respect, it has long been recognized that the phrase "information
relating to the national defense" is quite broad and potentially too broad since, especially in time
of war, any information could conceivably relate to the national defense. See United States v.
Heine, 151 F.2d 813, 815 (2d Cir. 1945) ("It seems plain that the section cannot cover
information about all those activities which become tributary to `the national defense' in time of
war; for in modern war there are none which do not."). Courts, facing the obvious need to find
some limiting construction, have not limited the phrase by specific subject matter, but instead
have chosen to limit the phrase by requiring the government to prove (i) that the information is
closely held by the government and (ii) that the information is the type of information that, if
disclosed, could harm the United States. A review of the most pertinent case law interpreting
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and cabining the phrase is instructive.
In Gorin v. United States, 312 U.S. 19 (1941), the Supreme Court rejected a similar
vagueness challenge to identical language used in section 2(a) of the Espionage Act, currently
codified at 18 U.S.C. § 794(a). ^17 In that case, defendant Gorin, a citizen of the U.S.S.R., had
obtained from defendant Salich, a naval intelligence officer, the substance of over fifty reports
relating to Japanese activities in the United States, which the two had conspired to transmit to the
Soviet Union. Id. at 22. The Supreme Court rejected an attempt by defendants to tie the term
"information relating to the national defense" to information relating to those places listed in
section 1(a) of the statute, currently codified at § 793(a), ^18 stating instead that the term "national
17
Section 2(a) of the Espionage Act provided as follows:
Whoever, with intent or reason to believe that it is to be used to the injury of the
United States or to the advantage of a foreign nation, communicates, delivers, or
transmits, or attempts to, or aids or induces another to, communicate, deliver, or
transmit, to any foreign government, or to any faction or party or military or naval
force within a foreign country, whether recognized or unrecognized by the United
States, or to any representative, officer, agent, employee, subject, or citizen
thereof, either directly or indirectly, any document, writing, code book, signal
book, sketch, photograph, photographic negative, blue print, plan, map, model,
note, instrument, appliance, or information relating to the national defense, shall
be punished by imprisonment for not more than twenty years . . . .
40 Stat. 217 (emphasis added). This statute is identical, in all material respects, to 18 U.S.C.
§ 794(a).
18
Section 1(a) of the Espionage Act prohibited anyone from obtaining:
information concerning any vessel, aircraft, work of defense, navy yard, naval
station, submarine base, coaling station, fort, battery, torpedo station, dockyard,
canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or
signal station, building, office, or other place connected with the national defense,
. . . or any place in which any vessel, aircraft, arms, munitions, or other materials
or instruments for use in time of war are being made, prepared, repaired, or
stored . . .
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defense" had acquired a well-known meaning "as a generic concept of broad connotations,
referring to the military and naval establishments and the related activities of national
preparedness." Gorin, 312 U.S. at 28. Significantly, as the trial court in Gorin instructed the
jury, the term encompasses the United States' own intelligence reports about another nation's
military activities, "[f]or from the standpoint of military or naval strategy it might not only be
dangerous to us for a foreign power to know our weaknesses and our limitations, but it might
also be dangerous to us when such a foreign power knows that we know that they know of our
limitations." Id. at 31.
The considerable breadth of the subject matter falling within the phrase "related to the
national defense" has been confirmed in more recent cases. Thus, in United States v. Truong
Dinh Hung, 629 F.2d 908 (4th Cir. 1980), the Fourth Circuit rejected the defendants' argument
that "information relating to the national defense" was restricted to military matters, holding
instead that the U.S. diplomatic cables relating to the 1977 Paris peace negotiations with the
North Vietnamese were "related to the national defense" within the meaning of §§ 793 and 794.
Truong, 629 F.2d at 918. In response to Truong's argument that the material he transmitted was
not covered by the phrase, the Fourth Circuit explained that "Congress intended `national
defense' to encompass a broad range of information and rejected attempts to narrow the reach of
the statutory language." Id. (citing Edgar and Schmidt, Espionage Statutes, 73 Colum. L. Rev. at
972-74). Similarly, in Morison, the Fourth Circuit approved the district court's instruction to the
jury describing "information relating to the national defense" as including "all matters that
if such person had intent or reason to believe that such information would be used to the injury of
the United States or to the advantage of a foreign nation. 40 Stat. 217.
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directly or may reasonably be connected with the national defense of the United States against
any of its enemies. It refers to the military and naval establishments and the related activities of
national preparedness." Morison, 844 F.2d at 1071. In sum, the phrase "information relating to
the national defense" has consistently been construed broadly to include information dealing with
military matters and more generally with matters relating to United States foreign policy and
intelligence capabilities.
Rather than limiting the subject matter scope of the phrase "information relating to the
national defense," or restricting it to tangible material, courts have carefully cabined the phrase's
scope in two ways. First, courts have limited the term by requiring that the information be
closely held by the government. This requirement was recognized by the Supreme Court in
Gorin, ^19 and served as the basis for Judge Hand's decision in United States v. Heine, 151 F.2d
813 (2d Cir. 1945), in which he reversed Heine's conviction under the predecessor to § 794
because the information about airplane production Heine delivered to the Germans was publicly
available. See id. at 817. As Judge Hand put it,
As declared in Gorin . . . it is obviously lawful to transmit any information about
weapons and munitions of war which the services had themselves made public;
and if that be true, we can see no warrant for making a distinction between such
information, and information which the services have never thought it necessary
to withhold at all.
Id. at 816. Similarly, the Fourth Circuit's rejection of a vagueness challenge to the term
"information relating to the national defense" in Morison, was based, in part, on the district
judge's instruction to the jury that "the government must prove that the documents or the
photographs are closely held in that they have not been made public and are not available to the
19
312 U.S. at 28.
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general public." Morison, 844 F.2d at 1071-72. ^20
Contrary to the government's assertion, the Fourth Circuit's decision in United States v.
Squillacote, 221 F.3d 542 (4th Cir. 2000), does not compel the conclusion that information not
officially disclosed, but in the public domain, retains its status as "information relating to the
national defense." In that case, the Fourth Circuit held that the government's assessment of the
reliability of publicly available information--as opposed to the information itself--might itself
be information relating to the national defense. Id. at 578-79. As the Fourth Circuit put it: "That
our government believes the estimates to be correct in and of itself is a fact that would be highly
valuable to other countries." Id. at 578. Because the disclosure of classified documents discloses
the "government's implicit stamp of correctness and accuracy," the disclosure of official
documents may violate the statute even if the information contained within the documents is
publicly available. Id. Thus, it is the confirmation of the accuracy (or presumably also the
inaccuracy) of material in the public domain, and not the public domain material itself, that a jury
may consider to be "information relating to the national defense." Because the instant case does
not involve the disclosure of classified documents, this distinction will matter only if the
defendants' oral disclosure of information in the public domain included an official confirmation
of what had previously been mere rumor or speculation. ^21 Further, although the confirmation of
20
See also Truong, 629 F.2d at 918 n.9 (noting that district court's instruction to jury that
"the defendants would not be guilty of transmitting national defense information if the
information were available in the public domain" was proper); United States v. Allen, 31 M.J.
572, 627-28 (N.C.M.R. 1987) (stating that the term includes only "information that is not
generally accessible to the public, i.e., it must be non-public information.").
21
See United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972) ("Rumor and
speculation are not the equivalent of prior disclosure, however, and the presence of that kind of
surmise should be no reason of avoidance of restraints upon confirmation from one in a position
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publicly available information relating to the national defense may at times constitute a
disclosure of information relating to the national defense, this is not always the case, for as the
Fourth Circuit has cautioned, "one may imagine situations in which information has been so
widely circulated and is so generally believed to be true, that confirmation by one in a position to
know would add nothing to its weight." Knopf, 509 F.2d at 1370-71. As explained below, the
distinction between a confirmation of information relating to the national defense already in the
public domain that can be NDI and one that cannot depends on whether the confirmation may
potentially harm the national security. In sum, information related to the national defense
typically cannot qualify as such if it is in the public domain; it must be closely held by the
government. Yet, in appropriate circumstances, this NDI can include the government's closely
held assessment or confirmation of certain public domain information.
The second judicially imposed limitation on the phrase "information relating to the
national defense" is the requirement that its "disclosure would be potentially damaging to the
United States or useful to an enemy of the United States." Morison, 844 F.2d at 1071-72. This
important requirement is implicit in the purpose of the statute and assures that the government
cannot abuse the statute by penalizing citizens for discussing information the government has no
compelling reason to keep confidential. As the Supreme Court has instructed, the statute only
applies to information for which there is an "occasion for secrecy," and there is no "occasion for
secrecy" unless disclosure of the information the government seeks to protect implicates an
to know officially."); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975)
("Rumors and speculations circulate and sometimes get into print. It is one thing for a reporter or
author to speculate or guess that a thing may be so or even quoting undisclosed sources, to say
that it is so; it is quite another thing for one in a position to know of it officially to say so.").
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important government interest such as the national security. See Gorin, 312 U.S. at 28. This
second NDI judicial gloss was explicitly relied upon in the concurring opinions of Judges
Wilkinson and Phillips in Morison as necessary to save the statute from Morison's First
Amendment challenge. As Judge Wilkinson explained:
The district court's limiting instructions properly confine prosecution under the
statute to disclosures of classified information potentially damaging to the military
security of the United States. In this way the requirements of the vagueness and
overbreadth doctrines restrain the possibility that the broad language of this statute
would ever be used as a means of punishing mere criticism of incompetence and
corruption in the government.
Morison, 844 F.2d at 1084 (Wilkinson, J., concurring); see also id. at 1086 (Phillips, J.,
concurring) ("I agree that the limiting instruction which required proof that the information
leaked was either `potentially damaging to the United States or might be useful to an enemy'
sufficiently remedied [the statute's vagueness and overbreadth].").
Thus, the phrase "information relating to the national defense," while potentially quite
broad, is limited and clarified by the requirements that the information be a government secret,
i.e., that it is closely held by the government, and that the information is the type which, if
disclosed, could threaten the national security of the United States. So cabined, the phrase
"information relating to the national defense" avoids fatal vagueness and passes Due Process
muster; given these two limitations the phrase provides fair notice of what it encompasses and is
also an adequate safeguard against arbitrary enforcement.
B.
Defendants also argue that they lacked constitutionally adequate notice as to who was
"entitled to receive" the national defense information, especially given the fact that the
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information was transmitted orally and therefore possessed no markings of "SECRET,"
"CONFIDENTIAL" or other indicia typical of classified material. It is true that the statute itself
provides no definition of the phrase "entitled to receive," nor does it expressly delegate to the
executive branch the authority to determine who is entitled to receive national defense
information. ^22 Yet, this is not the end of the analysis. The Fourth Circuit addressed a similar
challenge in Morison, and held that drafters of the Espionage Act correctly assumed that the
President had the inherent authority to limit the communication of information relating to the
national defense and that these preexisting rules and regulations of the Executive Branch would
determine who is entitled to receive NDI. Morison, 844 F.2d 1065-66. Indeed, during the
debates over the passage of the Espionage Act in 1917, Senator Sutherland observed that "the
phrase `lawfully entitled' means nothing more and nothing less than that the particular
information must have been forbidden not necessarily by an act of Congress; because in dealing
with military matters the President has very great powers." Id. (quoting 54 Cong.Rec. 3489). In
other words, Congressional drafters viewed the phrase "entitled to receive" as an unfilled vessel
into which the Executive Branch could pour more detailed content consistent with the phrase's
plain meaning and the statute's purpose. Precisely this occurred.
In the instant case, as in Morison, the rule regulating who is "entitled to receive" is the
Executive Order setting forth a uniform classification system for national security information.
22
Cf. 18 U.S.C. § 798 (prohibiting disclosure of certain classified information to an
unauthorized person, and defining "unauthorized person" as "any person who, or agency which,
is not authorized to receive information of the categories set forth in subsection (a) of this
section, by the President, or by the head of a department or agency of the United States
Government which is expressly designated by the President to engage in communication
intelligence activities for the United States.").
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See Exec.Order No. 13,292, 68 Fed.Reg. 15,315 (March 25, 2003) amending Exec.Order No.
12,958, 60 Fed.Reg. 19,825 (April 17, 1995). The current classification system provides for the
classification of information into one of three categories ­ Top Secret, Secret, and Classified ­
depending on the harm to the United States that would result from the information's disclosure, ^23
and restricts access to classified information to those with a corresponding security clearance and
a need-to-know. Id. at 15,315-16, 15,324. The classification system also acknowledges that
classified information may be disseminated beyond the executive branch by those with authority
to do so. See id. at 1325. ^24 Thus, while the language of the statute, by itself, may lack precision,
the gloss of judicial precedent has clarified that the statute incorporates the executive branch's
classification regulations, which provide the requisite constitutional clarity. ^25
23
See id. at 15,326. Specifically, the designation "Top Secret" applies to information, the
unauthorized disclosure of which reasonably could be expected to cause exceptionally grave
damage to the national security. The designation "Secret" applies to information, the
unauthorized disclosure of which reasonably could be expected to cause serious damage to the
national security. Finally, the designation "Confidential" applies to information, the
unauthorized disclosure of which reasonably could be expected to cause damage to the national
security. The current classification system also contemplates "special access programs" which
further restrict access to certain information. Id.
24
Specifically, Section 4.1(e) provides that "Persons authorized to disseminate classified
information outside the executive branch shall ensure the protection of the information in a
manner equivalent to that provided within the executive branch," and Section 5.2(b) provides
that "[i]n an emergency, when necessary to respond to an imminent threat to life or in defense of
the homeland, the agency head or any designee may authorize the disclosure of classified
information to an individual or individuals who are otherwise not eligible for access." Id.
25
See Morison, 844 F.2d at 1075 ("We therefore hold that the words `entitled to receive'
in the statute in this case can be limited and clarified by the Classification Regulations and, as so
limited and clarified, are not vague."). See also United States v. Truong Dinh Hung, 629 F.2d
908, 919 n.10 (4th Cir. 1980) ("Section 793(e) contains another possible ambiguity. It punishes
only those who have "unauthorized possession of national defense information. The trial judge
provided adequate content for this phrase by advising the jury that a person would have
authorized possession if he had an appropriate security clearance and if he gained access to the
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C.
Defendants seek to distinguish this clear precedent clarifying the phrases "information
relating to the national defense" and "entitled to receive" by arguing that because they received
the information orally it was difficult to know at the time whether it was classified. And in this
respect, although evidence that the information was classified is neither strictly necessary nor
always sufficient to obtain a prosecution under § 793, the classification of the information by the
executive branch is highly probative of whether the information at issue is "information relating
to the national defense" and whether the person to whom they disclosed the information was
"entitled to receive" the information. This is so because: (1) the subject matter of classified
information must concern the national security or military preparedness of the nation, ^26 (2) access
to classified information is restricted to a small number of people and accordingly is "closely
document because it was necessary to the performance of his official duties.").
26
See Exec.Order No. 13,292, 68 Fed.Reg. 15,315, 15,317 (March 25, 2003). Section 1.4
of the classification regulation lists the exclusive types of information which may be considered
for classification, including information concerning--
(a) military plans, weapons systems, or operations; (b) foreign government
information; (c) intelligence activities (including special activities), intelligence
sources or methods, or cryptology; (d) foreign relations or foreign activities of the
United States, including confidential sources; (e) scientific, technological, or
economic matters relating to the national security, which includes defense against
transnational terrorism; (f) United States government programs for safeguarding
nuclear materials or facilities; (g) vulnerabilities or capabilities of systems,
installations, infrastructure, projects, plans, or protection services relating to the
national security, which includes defense against transnational terrorism; of (h)
weapons of mass destruction.
Id.
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held," ^27 and (3) classified information must be the type of information the disclosure of which
could damage the nation's security. ^28 In addition, as noted, the classification status of
information alleged to be related to the national defense governs who is "entitled to receive" the
information.
Citing these parallels, defendants argue that the difficulty in determining whether orally
transmitted information is classified is highly relevant to whether the statute provides
constitutionally adequate notice. A comparison of the application of the statute as-applied here
to intangible information and the application of the statute in the typical § 793 prosecution to the
delivery of classified documents (or any other tangible item) illustrates this point. All classified
documents are clearly marked with a classification level and are often marked classified or
unclassified at the paragraph level. ^29 For this reason, a person possessing such a document can
easily determine: (i) whether the possession is authorized, (ii) which portions of the information
the government is attempting to keep secret, and (iii) who else is entitled to receive the
document. In contrast, a conversation about classified information, even one accompanied by a
27
See id. at 15,324 (detailing in Section 4.1(a) the restrictions on access to classified
information).
28
See id. at 15,315-16 (detailing in Section 1.2 the various levels of classification which
depend on the amount of damage to the national security that could result from disclosure of the
information). The classification regulation also prohibits the classification of information in
order to "(1) conceal violations of law, inefficiency, or administrative error; (2) prevent
embarrassment to a person, organization, or agency; (3) restrain competition; or (4) prevent or
delay the release of information that does not require protection in the interest of the national
security." Id. at 15318.
29
See Exec.Order No. 13,292, 68 Fed.Reg. 15,315, 15,317 (March 25, 2003) (detailing, in
Section 1.6, the identification and markings that must accompany any classified document or
other classified media).
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generic warning that "this information is classified," is not likely to apprise the listener of
precisely which portions of the information transmitted in the conversation are classified, or
whether a more general description of the information retains its classification status such that it
is sufficiently closely held and potentially damaging to the United States to violate the statute.
Defendants argue that the difficulty in determining the classification of intangible information
renders the application of the statute to them unconstitutionally vague. In addition, the
defendants argue that because they were not government employees familiar with the executive
branch's classification regulations, and because the classification regulations are not explicitly
incorporated into the statute, they did not have a constitutionally sufficient basis for determining
who is "entitled to receive" the information. See Morison, 844 F.2d at 1074 (describing
Morison's familiarity with the classification regulations and concluding that "certainly the phrase
`not authorized to receive it' was well understood by the defendant.").
Although defendants' argument is not without some force, it is ultimately unpersuasive.
It is true that the difficulty in determining orally transmitted information's classification status is
highly relevant to whether the defendants knew, as is alleged, that they were transmitting NDI to
one not entitled to receive it, but the defendants' attempt to convert this difficulty into a reason
for finding the statute unconstitutionally vague must ultimately fail. This is so because the
statute requires the government to prove the defendants "willfully" ^30 committed the prohibited
30
18 U.S.C. § 793. In this regard, the Fourth Circuit in Morison approved the district
court's use of the standard specific intent instruction for the term "willfully." See Morison, 844
F.2d at 1071 ("An act is done willfully if it is done voluntarily and intentionally and with the
specific intent to do something that the law forbids. That is to say, with a bad purpose either to
disobey or to disregard the law."); see also United States v. Truong Dinh Hung, 629 F.2d 908,
919 (4th Cir. 1980) (describing an act done "willfully" as an act committed with a "design to
mislead or deceive another. That is, not prompted by an honest mistake as to one's duties, but
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conduct, and this "willfulness" requirement "eliminat[es] any genuine risk of holding a person
`criminally responsible for conduct which he could not reasonably understand to be proscribed.'"
United States v. Hsu, 364 F.3d 192, 197 (4th Cir. 2004) (quoting United States v. Sun, 278 F.3d
302, 309 (4th Cir. 2002)). Indeed, the Fourth Circuit has relied on this specific intent
requirement in rejecting similar claims of vagueness in Morison and Truong. ^31
Thus, the government in this case must prove beyond a reasonable doubt that the
defendants knew the information was NDI, i.e., that the information was closely held by the
United States and that disclosure of this information might potentially harm the United States,
and that the persons to whom the defendants communicated the information were not entitled
under the classification regulations to receive the information. Further the government must
prove beyond a reasonable doubt that the defendants communicated the information they had
received from their government sources with "a bad purpose either to disobey or to disregard the
law." Morison, 844 at 1071. It follows, therefore, that if the defendants, or either of them, were
truly unaware that the information they are alleged to have received and disclosed was classified,
or if they were truly ignorant of the classification scheme governing who is entitled to receive the
information, they cannot be held to have violated the statute. Thus, while the factual distinctions
pointed out by defendants undoubtedly affect the government's burden, they do not render the
prompted by some personal or underhanded motive.").
31
Morrison, 844 F.2d at 1071 ("Combining the two instructions, the one on wilfulness
and the one defining national defense, the district judge in this case gave precisely the instruction
on this vagueness issue that we approved in United States v. Truong Dinh Hung, 629 F.2d at
919.").
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statute unconstitutionally vague. ^32
In addition to proving that the defendants committed the prohibited acts "willfully," the
statute imposes an additional and significant scienter requirement when a person is accused of
transmitting "information relating to the national defense." Thus, the statute, as-applied to these
defendants also requires the government to prove that such information was communicated with
"reason to believe it could be used to the injury of the United States or to the advantage of any
foreign nation." 18 U.S.C. §§ 793(d), (e). This language accompanied Congress's amendment
of the statute in 1950 adding the term "information" back into the provisions' list of enumerated
items relating to the national defense, and it is clear from both the text and the legislative history
that this additional scienter requirement applies only to the communication of intangible
"information," and is intended to heighten the government's burden when defendants are accused
of communicating intangible information. ^33 As has been noted, the statute's "willfulness"
requirement obligates the government to prove that the defendants knew that disclosing the NDI
could threaten the nation's security, and that it was illegal, but it leaves open the possibility that
32
See Hsu, 364 F.3d at 197 n.1 ("Defendants attempt to distinguish Sun by focusing on
factual differences between it and the case at hand. Specifically, they argue that, unlike the
defendants in Sun, they were not experienced `munitions exporters' and the encryption devices
here, unlike the missile and bomb parts at issue in Sun, are not exclusively designed for military
use. . . . These factual differences, however, do not change the legal analysis. The reasoning in
Sun--that requiring the jury to find a defendant acted `willfully' necessarily leaves `innocent'
exporters outside the statute's scope and so vitiates any vagueness concerns--applies equally
here.").
33
See Edgar and Schmidt, Espionage Statutes, 73 Colum.L.Rev. at 1023 (citing S.Rep.No.
427, 80th Cong., 1st Sess. 7 (1949)); id. at 1024 (H.R.Rep.No. 647, 81st Cong., 1st Sess. (1949)).
See also Morison, 844 F.2d at 1073 n.26 (noting the anomalous statement in the legislative
history that this second scienter requirement is the only intent scienter requirement) (citing
H.R.Rep. No. 647, 81st Cong., 1st Sess. (1949), at 3-4).
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defendants could be convicted for these acts despite some salutary motive. For example, if a
person transmitted classified documents relating to the national defense to a member of the media
despite knowing that such an act was a violation of the statute, he could be convicted for
"willfully" committing the prohibited acts even if he viewed the disclosure as an act of
patriotism. By contrast, the "reason to believe" scienter requirement that accompanies
disclosures of information, requires the government to demonstrate the likelihood of defendant's
bad faith purpose to either harm the United States or to aid a foreign government. In this sense,
requiring the government to prove that "the possessor has reason to believe [the information
relating to the national defense] could be used to the injury of the United States or to the
advantage of any foreign nation" is not duplicative of the requirement that the government prove
the defendant willfully disclose information that is potentially damaging to the United States
because the latter concerns only the quality of the information, whereas the former relates to the
intended (or recklessly disregarded) effect of the disclosure.
This conclusion is buttressed by reference to the contemporary judicial construction of
similar language as used in related statutes. In Gorin, the leading precedent interpreting the
Espionage Act at the time of § 793's last amendment in 1950, the Supreme Court rejected a
vagueness challenge to the precursor to § 794(a), in part, on the basis of the "obvious delimiting
words in the statute" requiring that the defendants act with "intent or reason to believe that the
information to be obtained is to be used to the injury of the United States, or to the advantage of
any foreign nation." Gorin, 312 U.S. at 27-28. According to Justice Reed, this "phrase requires
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those prosecuted to have acted in bad faith." Id. at 28. ^34 This is significant because when
Congress amended §§ 793(d) and (e) to reintroduce the term "information" it chose to modify the
term with essentially the same delimiting words relied upon by Gorin less than ten years earlier, ^35
presumably with the intent that prosecutions under these provisions require the same proof of bad
faith. ^36 The Supreme Court relied on this language when it rejected Gorin's vagueness challenge
to the phrase "information relating to the national defense," Gorin, 312 U.S. at 28, and this added
scienter requirement is yet another ground for rejecting the defendants' vagueness challenge here.
34
Nearly forty years later, the Fourth Circuit considered a similar vagueness challenge to
the phrase "relating to the national defense" as it is used in 18 U.S.C. § 793(f)(2), which
penalizes those who have been entrusted with information relating to the national defense and
knowingly fail to report its loss, theft, abstraction or destruction to a superior officer. The Fourth
Circuit upheld the provision despite the absence of the delimiting words cited in Gorin,
reasoning that the statute's requirement of knowledge of illegal abstraction impliedly includes
knowledge of injury to the United States. United States v. Dedeyan, 584 F.2d 36, 39 (4th Cir.
1978) (upholding a conviction for failure to report the abstraction of a document relating to the
national defense).
35
There are two slight differences between the formulation of the intent requirement in
§§ 793(a) and 794(a) and that of §§ 793(d) and (e). The former requires "intent or reason to
believe . . ." whereas the latter only requires a "reason to believe . . . ." Because one who has the
intent to believe communication of the information may harm the United States or aid a foreign
nation necessarily has a reason to believe communication of the information will do the same, the
elimination of the superfluous disjunctive does not affect the conclusion that Congress intended
the same evil intent recognized by the Supreme Court in Gorin. Nor is it material that the statute
at issue in Gorin required an "intent or reason to believe that the [the information] is to be used
to the injury of the United States" whereas § 793(d) and (e) require that there be a "reason to
believe that the information could be used to the injury of the United States . . . ." The use of a
slightly less demanding intent requirement does not alter the conclusion that this language is
intended to require bad faith.
36
See Woodford v. Ngo, 548 U.S. ___, 2006 WL 1698937, *14 (2006) ("[I]f we have
already provided a definitive interpretation of the language in one statute, and Congress then uses
nearly identical language in another statute, we will give the language in the latter statute an
identical interpretation unless there is a clear indication in the text or legislative history that we
should not do so.").
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In summary, any inherent vagueness in the terms "relating to the national defense" or
"entitled to receive" as used in §§ 793(d) and (e) is cured through the judicial glosses that have
been added to these phrases. To the extent that oral transmission of information relating to the
national defense makes it more difficult for defendants to know whether they are violating the
statute, the statute is not thereby rendered unconstitutionally vague because the statute permits
conviction only of those who "willfully" commit the prohibited acts and do so with bad faith. So
construed, both phrases pass Fifth Amendment muster; they are not unconstitutionally vague as
applied to these defendants.
D.
Seeking to avoid this conclusion, defendants argue that notwithstanding the clarity of the
statute's language, the application of the statute to these defendants is so novel and
unprecedented that it violates the fair warning prong of the vagueness doctrine. As explained
supra, the constitutionally required clarity of a statute may be provided through the gloss of
judicial interpretation, and it is precisely the judicial glosses on § 793 that save the statute from
defendants' vagueness challenge. The corollary of this principle is that "due process bars courts
from applying a novel construction of a criminal statute to conduct that neither the statute nor any
prior judicial decision has fairly disclosed to be within its scope." Lanier, 520 U.S. at 266. This
principle is animated by the same concern for fair warning that animates the Constitution's
prohibition of ex post facto laws. As the Supreme Court has stated:
[A]n unforeseeable judicial enlargement of a criminal statute, applied
retroactively, operates precisely like an ex post facto law, such as Art. I, s. 10, of
the Constitution forbids . . . . If a state legislature is barred by the Ex Post Facto
Clause from passing such a law, it must follow that a State Supreme Court is
barred by the Due Process Clause from achieving precisely the same result by
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judicial construction.
Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1967) (prohibiting application of criminal
trespass statute to sit-in demonstrators when neither the language of the statute nor past precedent
gave adequate warnings that conduct was proscribed). ^37 Thus, the test under these precedents is
whether the language and application of the statute has provided defendants adequate warning
that their conduct was proscribed. Section 793, as-applied here, meets this test; its language and
history provided adequate warning to these defendants that the statute proscribed the alleged
conduct.
Defendants argue that the present prosecution represents a novel construction of the
statute which they could not have anticipated because "leaks" of classified information by non-
governmental persons have never been prosecuted under this statute. The statute's plain
language rebuts this argument. ^38 It is clear from this plain language that defendants' conduct, as
alleged in the superseding indictment is within the sweep of the statute. This is in sharp contrast
to the statute in Bouie, which "on its face is narrow and precise," lulling "the potential defendant
into a false sense of security, giving him no reason even to suspect that conduct clearly outside
the scope of the statute as written will be retroactively brought within it by an act of judicial
37
See also Marks v. United States, 430 U.S. 188, 191-92 (1977) (reversing a federal
conviction for transport of obscene material because it rested on an unforeseeable change in the
Supreme Court's definition of obscenity); Rabe v. Washington, 405 U.S. 313, 315 (reversing a
conviction under a state obscenity law because it rested on an unforeseeable judicial construction
of the statute).
38
In amending the statute in 1950, Congress made it quite clear that the statute was
intended to apply to the transmission of national defense information by non-government
employees by adding subsection (e). Similarly, as previously discussed, by adding the term
"information" to the statute Congress plainly meant to ensure that the oral communication of
information was within the statute's ambit.
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construction." Bouie, 378 U.S. at 352. The same cannot fairly be said of § 793. It follows, that
in contrast to the Bouie defendants, the defendants here cannot argue persuasively that the result
reached here amounts to an unforeseeable judicial enlargement of § 793.
And, it is useful in this regard to address defendants' frequent use of the term "leak" in
advancing their argument that there was not constitutionally adequate notice that the statute
reached the alleged conduct. The term "leak," at bottom, connotes in this context, an
unpermitted or unauthorized transmission or transfer of information, which of course, is an act
plainly within § 793, assuming all the other requirements are met. So, labeling an event a "leak"
does not remove the event from the statute's scope. At best, the term "leak" is a euphemism used
to imply or suggest to a careless reader that the transmission of the information was somehow
authorized. Whether the "leaks" or transmissions of information in this case were authorized is
likely to be a sharply controverted issue in this case and if the government does not carry its
burden of showing that the transfers of information were unauthorized, the prosecution fails. But
the analysis here proceeds, as it must, on the superseding indictment's allegations, including the
allegation that all transmissions of NDI were unauthorized. At this point, therefore, defendants
frequent use of "leak" as a characterization of what occurred is unavailing.
Also unsuccessful is defendants' claim that past applications of the statute fail to provide
fair warning that the statute could be applied to the facts alleged in the superseding indictment.
Morison itself rebuts this claim. Notably, in Morison the Fourth Circuit considered the very
similar argument that the statute was intended to apply only to classic espionage cases and
therefore did not apply to Morison's "leak" to a news publication. In rejecting this argument, the
Fourth Circuit noted the rarity of prosecutions under § 793(e), but stated--
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that the rarity of prosecution under the statutes does not indicate that the statutes
were not to be enforced as written. We think in any event, the rarity of use of the
statute as a basis for prosecution is at best a questionable basis for nullifying the
clear language of the statute, and we think the revision of 1950 and its
reenactment of section 793(d) demonstrate that Congress did not consider such
statute meaningless or intend that the statute and its prohibitions were to be
abandoned.
Morison, 844 F.2d at 1067. The Fourth Circuit's reasoning in rejecting Morison's challenge is
equally applicable to the defendants here, and therefore, for the same reasons, defendants'
vagueness challenge based on the novelty of this prosecution fails as well.
V.
The defendants' next constitutional challenge rests on the First Amendment's guarantees
of free speech and the right to petition the government for grievances. ^39 Defendants raise this
First Amendment challenge to the statute as applied to them, and under the doctrine of
overbreadth, as applied to those third parties not currently before the Court who may be
prosecuted under the statute in the future. See Village of Schaumburg v. Citizens for a Better
Envt., 444 U.S. 620, 634 (1980) ("Given a case or controversy, a litigant whose own activities are
unprotected may nevertheless challenge a statute by showing that it substantially abridges the
First Amendment rights of other parties not before the Court."). Defendants' First Amendment
challenge exposes the inherent tension between the government transparency so essential to a
democratic society and the government's equally compelling need to protect from disclosure
information that could be used by those who wish this nation harm. In addressing this tension, it
39
The First Amendment states in full as follows: "Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances." U.S. Const. amd. I.
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is important to bear in mind that the question to be resolved here is not whether § 793 is the
optimal resolution of this tension, but whether Congress, in passing this statute, has struck a
balance between these competing interests that falls within the range of constitutionally
permissible outcomes. See Dennis v. United States, 341 U.S. 494, 525 (1951) (Frankfurter, J.,
concurring).
As an initial matter, it is necessary to confront the government's proposed categorical rule
that espionage statutes cannot implicate the First Amendment. This contention overreaches. In
the broadest terms, the conduct at issue -- collecting information about United States' foreign
policy and discussing that information with government officials (both United States and
foreign), journalists, and other participants in the foreign policy establishment -- is at the core of
the First Amendment's guarantees. See Mills v. Alabama, 384 U.S. 214, 218 (1966) ("[T]here is
practically universal agreement that a major purpose of [the First] Amendment was to protect the
free discussion of governmental affairs."). And, even under a more precise description of the
conduct -- the passing of government secrets relating to the national defense to those not entitled
to receive them in an attempt to influence United States foreign policy -- the application of
§ 793 to the defendants is unquestionably still deserving of First Amendment scrutiny. Indeed,
the government's proposed categorical rule has been rejected by the Supreme Court in other
contexts, and should be rejected here, as well. As the Supreme Court stated:
Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the various other forumulae for the
repression of expression that have been challenged in this Court, libel can claim
no talismanic immunity from constitutional limitations. It must be measured by
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standards that satisfy the First Amendment. ^40
So, too, the mere invocation of "national security" or "government secrecy" does not foreclose a
First Amendment inquiry. See Morison, 844 F.2d at 1081 (Wilkinson, J., concurring) ("The First
Amendment interest in informed popular debate does not simply vanish at the invocation of the
words `national security.'").
The Fourth Circuit's holding in Morison, chiefly relied on by the government to support
its position, is not to the contrary. While Judge Russell, writing for the panel, found that the
statute's application to Morison did not implicate the First Amendment, both Judge Wilkinson
and Judge Phillips wrote separately to express their respective views that the First Amendment
was implicated by Morison's prosecution, but that the government's interest in that case was
sufficient to overcome Morison's First Amendment rights. Compare Morison, 844 F.2d at 1068
(Russell, J.) ("[W]e do not perceive any First Amendment rights to be implicated here.") with id.
at 1081 (Wilkinson, J., concurring) ("I do not think the First Amendment interests here are
insignificant."); id. at 1085 (Phillips, J., concurring) ("I agree with Judge Wilkinson's differing
view that the first amendment issues raised by Morison are real and substantial and require the
serious attention which his concurring opinion then gives them."). Thus, the panel majority in
Morison viewed the application of § 793(e) to Morison as implicating the First Amendment.
Also worth noting is that the conduct alleged here is arguably more squarely within the ambit of
40
New York Times v. Sullivan, 376 U.S. 254, 269 (1964) (citing Herndon v. Lowry, 301
U.S. 242 (1937) (insurrection); Bridges v. California, 314 U.S. 252 (1941) (contempt);
Pennekamp v. Florida, 328 U.S. 331 (1946) (contempt); De Jonge v. State of Oregon, 299 U.S.
353 (1937) (advocacy of unlawful acts); Edwards v. South Carolina, 372 U.S. 229 (1963)
(breach of the peace); Roth v. United States, 354 U.S. 476 (1957) (obscenity); and NAACP v.
Button, 371 U.S. 415 (1963) (solicitation of legal business)).
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the First Amendment than Morison's conduct. Morison was convicted of "purloining from the
intelligence files of the Navy national defense materials clearly marked as `Intelligence
Information' and `Secret' and for transmitting that material to `one not entitled to receive it.'"
Morison, 844 F.2d at 1067. In the instant case, defendants are accused of the unauthorized
possession of information relating to the national defense, which they then orally communicated
to others, all within the context of seeking to influence United States foreign policy relating to
the Middle East by participating in the public debate on this policy. In the end, the government's
attempt to invoke Judge Russell's analogy of Morison's conduct to theft is, at the very least,
strained. For these reasons, Morison cannot be taken to stand for the proposition that
prosecutions brought pursuant to § 793 do not implicate the First Amendment.
Nor do early decisions interpreting other provisions of the Espionage Act support the
government's argument that this prosecution does not implicate the First Amendment. These
cases dealt with prosecutions under Section 3 of Title I of the Espionage Act, which prohibited
certain disruptions of the nation's war efforts. ^41 When considering First Amendment challenges
41
Section 3 of Title I of the Espionage Act provided:
Whoever, when the United States is at war, shall willfully make or convey false
reports or false statements with intent to interfere with the operation or success of
the military or naval forces of the United States or to promote the success of its
enemies and whoever, when the United States is at war, shall willfully cause or
attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the
military or naval forces of the United States, or shall willfully obstruct the
recruiting or enlistment service of the United States, shall be punished by a fine
not more than $10,000 or imprisonment for not more than twenty years, or both.
40 Stat. 217, 219 (1917). This provision was amended by the Sedition Act of May 16, 1918,
which prohibited individuals from saying anything with the intent to obstruct the sale of war
bonds; to "utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language"
intended to cause contempt or scorn for the form of government of the United States, the
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to prosecutions under this statute, the Supreme Court did not adopt a categorical rule that
prosecutions under the Espionage Act did not implicate the First Amendment, but carefully
weighed the government's interest in prosecuting the war against the defendants' First
Amendment interests. Justice Holmes, writing for the majority in Schenck, famously formulated
a shorthand for this balancing approach:
The question in every case is whether the words used are used in such
circumstances and are of such a nature as create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent. It
is a question of proximity and degree.
Schenck v. United States, 249 U.S. 47, 52 (1919). The Supreme Court engaged in this balancing
approach in subsequent Espionage Act cases, and while the convictions were uniformly upheld,
Justice Holmes frequently dissented or joined Justice Brandeis' dissent on the ground that the
harm to the nation's interest was insufficient to overcome the defendants' First Amendment
rights to free speech in the particular case. ^42 Thus, these cases refute do not support the
government's claim for a categorical rule that Espionage Act prosecutions are immune from First
Amendment scrutiny; but rather that, with respect to the First Amendment, "the character of
Constitution, or the flag; to urge the curtailment of production of war materials with the intent of
hindering the war effort; or to utter any words supporting the cause of any country at war with the
United States or opposing the cause of the United States." See 40 Stat. 553 (1918).
42
See Abrams v. United States, 250 U.S. 616, 628 (1919) (Holmes, J., dissenting) ("It is
only the present danger of immediate evil or an intent to bring it about that warrants Congress in
setting a limit to the expression of opinion where private rights are not concerned."); Schaefer v.
United States, 251 U.S. 466, 483 (Brandeis, J., dissenting) ("The question whether in a particular
instance the words spoken or written fall within the permissible curtailment of free speech is,
under the rule enunciated by this court, one of degree; and because it is a question of degree the
field in which the jury may exercise its judgment is necessarily a wide one. But its field is not
unlimited."); Pierce v. United States, 252 U.S. 239, 272 (1920) (Brandeis, J., dissenting). See
also Gitlow v. New York, 268 U.S. 652, 672 (1925) (Holmes, J., dissenting).
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every act depends on the circumstances in which it was done." Schenck, 249 U.S. at 52; see also
Dennis v. United States, 341 U.S. 494, 544 (1951) (Frankfurter, J., concurring) ("We have
frequently indicated that the interest in protecting speech depends on the circumstances of the
occasion."). Indeed, subsequent Supreme Court decisions have confirmed that while the First
Amendment must yield at times to the government's interest in national security, at other times,
the First Amendment interests at stake must prevail. ^43
Given that the application of the statute to these defendants warrants First Amendment
scrutiny, the question then becomes whether Congress may nonetheless penalize the conduct
alleged in the superseding indictment, for while the invocation of "national security" does not
free Congress from the restraints of the First Amendment, it is equally well established that the
invocation of the First Amendment does not "provide immunity for every possible use of
language," Frohwerk, 249 U.S. 204, 206 (1919), and that "the societal value of speech must, on
occasion, be subordinated to other values and considerations." Dennis v. United States, 341 U.S.
43
Compare Haig v. Agee, 453 U.S. 280, 309 (1981) (upholding the Secretary of State's
revocation of a former CIA employee's passport for exposing the identities of covert CIA agents
in various places around the world despite the former employee's Fifth amendment right to travel
and First Amendment rights); Snepp v. United States, 444 U.S. 507, 515 (1980) (per curiam)
(imposing a constructive trust on book profits of former CIA agent who failed to submit book to
CIA for pre-publication review); Greer v. Spock, 424 U.S. 828, 838 (1976) (upholding regulation
prohibiting political speeches on military base); Zemel v. Rusk, 381 U.S. 1 (1965) (upholding
restrictions on travel to Cuba from First Amendment challenge because "the right to speak and
publish does not carry with it the unrestrained right to gather information."); Dennis v. United
States, 341 U.S. 494, 510 (upholding conviction for conspiracy to advocate the overthrow of the
United States government) with United States v. New York Times, 403 U.S. 713, 714 (1971) (per
curiam) (denying government's request for injunction barring publication of the Pentagon
Papers); Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969) (per curiam) (reversing conviction
under Ohio criminal syndicalism statute because it failed to distinguish mere advocacy from
incitement to "imminent lawless action."); United States v. Robel, 389 U.S. 258 (1967) (holding
that provision making it unlawful for Communists to gain employment in defense industry
violated First Amendment freedom of association).
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494, 503 (1951). As Justice Frankfurter aptly put it in Dennis:
The demands of free speech in a democratic society as well as the interest in
national security are better served by a candid and informed weighing of the
competing interests, within the confines of the judicial process, than by
announcing dogmas too inflexible for the non-Euclidian problems to be solved.
Dennis, 341 U.S. at 524-25 (Frankfurter, J., concurring). Thus, to determine, on any given
occasion, whether the government's interest prevails over the First Amendment, courts must
begin with "an assessment of the competing societal interests" at stake, Morison, 844 F.2d at
1082 (quoting Saxbe v. Washington Post Co., 417 U.S. 843, 859-60 (1974) (Powell, J.,
dissenting)), and proceed to the "delicate and difficult task" of weighing those interests "to
determine whether the resulting restriction on freedom can be tolerated." United States v. Robel,
389 U.S. 258, 264 (1967) (quoting Schneider v. State of New Jersey, 308 U.S. 147, 161 (1939)).
As already noted, the defendants' First Amendment interests at stake in this prosecution,
and those of the third parties raised by defendants, are significant and implicate the core values
the First Amendment was designed to protect. The collection and discussion of information
about the conduct of government by defendants and others in the body politic is indispensable to
the healthy functioning of a representative government, for "[a]s James Madison put it in 1822:
`A popular Government, without popular information, or a means of acquiring it, is but a
Prologue to a Farce or a Tragedy; or, perhaps both.'" Morison, 844 F.2d at 1081 (Wilkinson, J.,
concurring) (quoting 9 Writings of James Madison 103 (G. Hunt ed. 1910)). This is especially so
in the context of foreign policy because, as Justice Stewart observed in the Pentagon Papers case:
In the absence of the government checks and balances present in other areas of our
national life, the only effective restraint upon executive policy and power in the
areas of national defense and international affairs may lie in an enlightened
citizenry -- in an informed and critical public opinion which alone can here
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protect the values of democratic government.
New York Times v. United States, 403 U.S. 713, 728 (1971) (Stewart J., concurring).
And, of course, this interest extends to information the government would prefer to keep secret
since "[t]here exists the tendency, even in a constitutional democracy, for government to
withhold reports of disquieting developments and to manage news in a fashion most favorable to
itself." Morison, 844 F.2d at 1081 (Wilkinson, J., concurring). See also Halperin v. Kissinger,
606 F.2d 1192, 1204 n.77 (D.C.Cir. 1979) (noting "the well-documented practice of classifying
as confidential much relatively innocuous or noncritical information."). Due regard for this
tendency requires the close judicial scrutiny of any government restriction on the "free flow of
information and ideas essential to effective self-government." Morison, 844 F.2d at 1081
(quoting Saxbe, 417 U.S. at 863).
But importantly, the defendants here are not accused merely of disclosing government
secrets, they are accused of disclosing NDI, i.e., government secrets the disclosure of which
could threaten the security of the nation. And, however vital an informed public may be, it is
well established that disclosure of certain information may be restricted in service of the nation's
security, for "[i]t is `obvious and unarguable' that no governmental interest is more compelling
than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v.
Secretary of State, 378 U.S. 500, 509 (1964)). ^44 And, as the Supreme Court has repeatedly noted,
one aspect of the government's paramount interest in protecting the nation's security is the
44
See also Dennis, 341 U.S. at 519 (Frankfurter, J., concurring) ("The right of a
government to maintain its existence­self-preservation­is the most pervasive aspect of
sovereignty. `Security against foreign danger,' wrote Madison, `is one of the primitive objects of
civil society.'") (quoting The Federalist No. 41).
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government's "compelling interest in protecting both the secrecy of information important to our
national security and the appearance of confidentiality so essential to the effective operation of
our foreign intelligence service." Snepp, 444 U.S. at 509 n.3. ^45 Thus, the right to free speech and
the value of an informed citizenry is not absolute and must yield to the government's legitimate
efforts to ensure "the environment of physical security which a functioning democracy requires."
Morison, 844 F.2d at 1082. This point is best expressed in the Supreme Court's pithy phrase that
"while the Constitution protects against the invasion of individual rights, it is not a suicide pact."
Aptheker, 378 U.S. at 509 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963)). ^46
Of course, the abstract proposition that the rights protected by the First Amendment must
at times yield to the need for national security does not address the concrete issue of whether the
§ 793, as applied here, violates the First Amendment. This determination depends on whether
§ 793 is narrowly drawn to apply only to those instances in which the government's need for
secrecy is legitimate, or whether it is too indiscriminate in its sweep, seeking in effect, to excise
the cancer of espionage with a chainsaw instead of a scalpel. In this respect, the first clause of
45
See also Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S.
103, 111 (1948) (The President, both as Commander-in-Chief and as the Nation's organ for
foreign affairs, has available intelligence services whose reports neither are nor ought to be
published to the world. "); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320
(1936) ("[The President] has his confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials. Secrecy in respect of information gathered by
them may be highly necessary, and the premature disclosure of it productive of harmful
results.").
46
Nor would the drafters of the First Amendment question the propriety of government
secrecy in aid of the national security. See, e.g., United States v. Marchetti, 466 F.2d 1309, 1316
(4th Cir. 1972) (quoting Louis Henkin, The Right to Know and the Duty to Withhold: the Case of
the Pentagon Papers, 120 U.Pa.L.Rev. 271, 273-74 (1971)) (noting the frequent and
uncontroversial employment of government secrecy since the constitutional convention).
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§ 793(e) implicates only the defendants' right to disclose, willfully, information the government
has sought to keep confidential due to the potential harm its disclosure poses to the national
security in situations in which the defendants have reason to believe that such disclosure could be
used to injure the United States or aid a foreign government. Likewise, § 793(d), which
defendants are charged with conspiring to violate, implicates the same interests, but is limited to
those people ­ generally government employees or contractors ­ with authorized possession of
the information. Thus, it seems fair to say that § 793, taken together with its judicial glosses, is
more the result of a legislative scalpel and not a chainsaw. This, however, does not end the
analysis.
As defendants correctly argue, the analysis of the First Amendment interests implicated
by §§ 793(d) and (e) depends on the relationship to the government of the person whose First
Amendment rights are implicated. In this respect, there are two classes of people roughly
correlating to those subject to prosecution under § 793(d) and those subject to prosecution under
§ 793(e). The first class consists of persons who have access to the information by virtue of their
official position. ^47 These people are most often government employees or military personnel
with access to classified information, ^48 or defense contractors with access to classified
47
These people could be prosecuted under § 793(d) or § 793(e) depending on whether
they were authorized to possess the information they accessed through their official positions
with the government.
48
See, e.g., United States v. Pollard, 959 F.2d 1011 (D.C.Cir. 1992); Morison, 844 F.2d
1057 (4th Cir. 1988); United States v. Kampiles, 609 F.2d 1233 (7th Cir. 1979); United States v.
Doe, 455 F.2d 1270 (1st Cir. 1972); United States v. Regan, 228 F.Supp.2d 742 (E.D.Va. 2002);
United States v. Allen, 31 M.J. 572 (N.M.C.M.R. 1990); United States v. Safford, 1969 WL 6134
(A.B.R. 1969).
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information, ^49 and are often bound by contractual agreements whereby they agree not to disclose
classified information. As such, they are in a position of trust with the government. The second
class of persons are those who have no employment or contractual relationship with the
government, and therefore have not exploited a relationship of trust to obtain the national defense
information they are charged with disclosing, but instead generally obtained the information from
one who has violated such a trust. ^50
There can be little doubt, as defendants readily concede, that the Constitution permits the
government to prosecute the first class of persons for the disclosure of information relating to the
national defense when that person knew that the information is the type which could be used to
threaten the nation's security, and that person acted in bad faith, i.e., with reason to believe the
disclosure could harm the United States or aid a foreign government. Indeed, the relevant
precedent teaches that the Constitution permits even more drastic restraints on the free speech
rights of this class of persons. Thus, in United States v. Marchetti, 466 F.2d 1309 (4th Cir.
1972), the Fourth Circuit held that enforcement of a secrecy agreement, signed by Marchetti
when he began his employment with the CIA, and a secrecy oath, signed upon his departure from
the CIA, did not violate the First Amendment despite the prior restraint on Marchetti's speech.
Id. at 1311. In so holding the Fourth Circuit recognized that:
Citizens have the right to criticize the conduct of our foreign affairs, but the
49
See, e.g., United States v. Poulsen, 41 F.3d 1330 (9th Cir. 1994); United States v. Zettl,
835 F.2d 1059 (4th Cir. 1987); United States v. Walker, 796 F.2d 43 (4th Cir. 1986); United
States v. Boyce, 594 F.2d 1246 (9th Cir. 1979).
50
See, e.g., United States v. Truong, 629 F.2d 908 (4th Cir. 1980); United States v. Lee,
589 F.2d 980 (9th Cir. 1979); United States v. Ntube, No. 93-0322-2, 1996 WL 808068 (D.D.C.
1996).
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government also has the right and the duty to strive for internal secrecy about the
conduct of governmental affairs in areas in which disclosure may reasonably be
thought to be inconsistent with the national interest.
Id. at 315. In light of this principle, the Fourth Circuit determined that the secrecy agreements
signed by Marchetti were a reasonable means of protecting the government's interest in
preserving secrecy about U.S. intelligence activities because "the Government's need for secrecy
in this area lends justification to a system of prior restraint." Similarly, in Snepp v. United States,
444 U.S. 507 (1980) (per curiam), the Supreme Court upheld the imposition of a constructive
trust on the profits of a book published by a former CIA officer who had deliberately avoided
submitting the book to the CIA for prepublication review. Id. at 508-09. In so doing, the
Supreme Court did not require that the government prove that the book actually contained
classified information, noting that "a former intelligence agent's publication of unreviewed
material relating to intelligence activities can be detrimental to vital national interests even if the
published information is unclassified." Id. at 511-12. See also Haig v. Agee, 453 U.S. 280, 308
(1981) ("Agee is as free to criticize the United States government as he was when he held a
passport ­ always subject, of course, to express limits on certain rights by virtue of his contract
with the government.").
Taken together, Marchetti and Snepp stand for the proposition that government
employees' speech can be subjected to prior restraints where the government is seeking to protect
its legitimate national security interests. Because prior restraints on speech are the most
constitutionally suspect form of a government restriction, ^51 it follows from this proposition that
Congress may constitutionally subject to criminal prosecution anyone who exploits a position of
51
See New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
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trust to obtain and disclose NDI to one not entitled to receive it. The Fourth Circuit confirmed
this conclusion by unanimously upholding Morison's conviction under §§ 793(d) and (e),
subject, as noted, to the limitation that a document or photograph related to the national defense
must be potentially harmful to the United States. For this reason, the government may
constitutionally punish government employees like Franklin for the willful disclosure of national
defense information, and if the government proves the defendants conspired with Franklin in his
commission of that offense, they may be subject to prosecution, as well. 18 U.S.C. § 793(g).
But the analysis must go beyond this because the defendants are also charged with
conspiring to violate § 793(e) for their own disclosures of NDI to those not entitled to receive it.
In this regard, they belong in the second class of those subject to prosecution under § 793 --
namely, those who have not violated a position of trust with the government to obtain and
disclose information, but have obtained the information from one who has. The defendants argue
that unlike Morison, Marchetti or Snepp, they did not agree to restrain their speech as part of
their employment, and accordingly their First Amendment interests are more robust. In this
respect, it is true that Morison was a naval intelligence officer working in a secure vaulted area,
and had signed a Non-Disclosure Agreement expressly acknowledging his liability to prosecution
under the espionage provisions for any unauthorized disclosure of classified information. And
for this reason, when Morison disclosed classified information to Jane's Defence Weekly, it was
not only potentially harmful to the United States, it was a violation of his agreement with the
United States and a violation of trust. Morison, 844 F.2d at 1060. Indeed, this fact was central to
the Fourth Circuit's rejection of Morison's First Amendment Challenge. Thus, Judge Russell,
writing for the majority, stated:
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[I]t seems beyond controversy that a recreant intelligence department employee
who had abstracted from the government files secret intelligence information and
had willfully transmitted or given it to one "not entitled to receive it" as did the
defendant in this case, is not entitled to invoke the First Amendment as a shield to
immunize his act of thievery.
Id. at 1069. Judge Wilkinson likewise emphasized Morison's position as a government
employee when he upheld the prosecution from Morison's First Amendment attack. See id. at
1085 (Wilkinson, J., concurring) ("[I]t is important to emphasize what is not before us today.
This prosecution was not an attempt to apply the espionage statute to the press for either the
receipt or publication of classified materials. . . . Such questions are not presented in this case,
and I do not read Judge Russell's opinion to express any view on them."). Similarly, in the
litigation over the government's classification determinations following Marchetti's submission
of his manuscript to the CIA, the Fourth Circuit held that "the First Amendment is [not a] bar
against an injunction forbidding the disclosure of classifiable information," because "[w]ith
respect to such information, by his execution of the secrecy agreement and his entry into the
confidential employment relationship, [Marchetti] effectively relinquished his First Amendment
rights." Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975).
One possible implication of this language is that a special relationship with the
government is necessary before the government may constitutionally punish the disclosure of
information relating to the national defense. Seizing upon this possible implication, defendants
here contend that the First Amendment bars Congress from punishing those persons, like
defendants, without a special relationship to the government for the disclosure of NDI. In
essence, their position is that once a government secret has been leaked to the general public and
the first line of defense thereby breached, the government has no recourse but to sit back and
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watch as the threat to the national security caused by the first disclosure multiplies with every
subsequent disclosure. This position cannot be sustained. Although the question whether the
government's interest in preserving its national defense secrets is sufficient to trump the First
Amendment rights of those not in a position of trust with the government is a more difficult
question, and although the authority addressing this issue is sparse, both common sense and the
relevant precedent point persuasively to the conclusion that the government can punish those
outside of the government for the unauthorized receipt and deliberate retransmission of
information relating to the national defense.
Of course, in some instances the government's interest is so compelling, and the
defendant's purpose so patently unrelated to the values of the First Amendment, that a
constitutional challenge is easily dismissed. The obvious example is the unauthorized disclosure
of troop movements or military technology to hostile foreign powers by non-governmental
persons, conduct typically prosecuted under § 794. ^52 But this is not such a case; the government
has not charged the defendants under § 794(a), and therefore the most relevant precedent,
although it dealt with the freedom of press, is the Supreme Court's decision in New York Times
Co. v. United States, 403 U.S. 713 (1971) (per curiam). There, the Supreme Court, in a brief per
curiam decision, denied the United States' request for an injunction preventing the New York
Times and Washington Post from publishing the contents of a classified historical study of
52
See, e.g., United States v. Rosenberg, 195 F.2d 583, 591 (2d Cir. 1952) (stating in a
§ 794(a) prosecution that "[t]he communication to a foreign government of secret material
connected with the national defense can by no far-fetched reasoning be included within the area
of First Amendment protected free speech."). See also Near v. Minnesota, 283 U.S. 697, 716
(1931) ("No one would question but that a government might prevent . . . the publication of the
sailing dates of transports or the number and location of troops.") (citing Z. Chafee, Freedom of
Speech 10 (1920)).
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United States policy towards Vietnam, known colloquially as the Pentagon Papers, on the ground
that the government failed to overcome the heavy presumption against the constitutionality of a
prior restraint on speech. See id. at 714. The per curiam decision was accompanied by six
concurring opinions and three dissents, and although the issue was not directly before the Court,
a close reading of these opinions indicates that the result may have been different had the
government sought to prosecute the newspapers under § 793(e) subsequent to the publication of
the Pentagon Papers. Of the six Justices concurring in the result three--Justices Stewart, White
and Marshall--explicitly acknowledged the possibility of a prosecution of the newspapers under
§ 793(e). ^53 And, with the exception of Justice Black, whose First Amendment absolutism has
never commanded a majority of the Supreme Court, the opinions of the other concurring justices
arguably support, or at least do not contradict, the view that the application of § 793(e) to the
instant facts would be constitutional. Justice Douglas's rejection of the potential applicability of
§ 793(e) to that case rested on his view that Congress specifically excluded "publication" from its
prohibited acts. See id. at 720-22 (Douglas J., concurring). The obvious implication of Justice
Douglas' opinion is that the communication ­ as opposed to publication ­ of information relating
to the national defense could be prosecuted under § 793(e). Likewise, while Justice Brennan did
not specifically address the espionage statutes, his concurrence was based on the heavy
presumption against the constitutionality of prior restraints. See id. at 725-27 (Brennan, J.,
53
See id. at 730 (Stewart, J., concurring) ("Undoubtedly Congress has the power to enact
specific and appropriate criminal laws to protect government property and preserve government
secrets. Congress has passed such laws, and several of them are of very colorable relevance to
the apparent circumstances of these cases."); id. at 737 (White, J., concurring) ("I would have no
difficulty in sustaining convictions under these sections on facts that would not justify the
intervention of equity and the imposition of a prior restraint."); id. at 745 (Marshall, J.,
concurring) (noting the possible relevance of 18 U.S.C. § 793(e)).
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concurring). Thus, among the concurring justices, only Justice Black seemed to favor a
categorical rule preventing the government from enjoining the publication of information to the
detriment of the nation's security, and even he relied on the absence of congressional authority as
a basis for denying the requested injunction. See id. at 718 (Black, J., concurring). Furthermore,
while the dissenting justices chiefly objected to the feverish manner of the Supreme Court's
review of the case, a survey of their opinions indicates the likelihood that they would have
upheld a criminal prosecution of the newspapers as well. See id. at 752 (Burger, C. J., dissenting
757 (Harlan, J., dissenting); id. at 761 (Blackmun, J., dissenting). Thus, the Supreme Court's
discussion of § 793(e) in the Pentagon Papers case supports the conclusion that § 793(e) does not
offend the constitution. While the Supreme Court's discussion of the application of § 793(e) to
the newspapers is clearly dicta, lower courts "are bound by the Supreme Court's considered dicta
almost as firmly as by the Court's outright holdings, particularly when, as here, a dictum is of
recent vintage and not enfeebled by any subsequent statement." McCoy v. Massachusetts
Institute of Technology, 950 F.2d 13, 19 (1st Cir. 1991); see also Gaylor v. United States, 74
F.3d 214, 217 (10th Cir. 1996); Reich v. Continental Gas Co., 33 F.3d 754, 757 (7th Cir. 1994);
United States v. Bell, 524 F.2d 202, 206 (2d Cir.1975); Fouts v. Maryland Casualty Co., 30 F.2d
357, 359 (4th Cir. 1929). In sum, Congress's attempt to provide for the nation's security by
extending punishment for the disclosure of national security secrets beyond the first category of
persons within its trust to the general populace is a reasonable, and therefore constitutional
exercise of its power.
It must be emphasized, however, that this conclusion rests on the limitation of § 793 to
situations in which national security is genuinely at risk; without this limitation, Congress loses
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its justification for limiting free expression. It was for this reason that the concurrences of Judge
Wilkinson and Judge Phillips in Morison insisted on the need for a jury instruction limiting
"information relating to the national defense" to information "potentially damaging to the United
States or . . . useful to an enemy of the United States." See Morison, 844 F.2d at 1084
(Wilkinson, J., concurring) (emphasis added); id. at 1086 (Phillips, J., concurring). As Judge
Wilkinson pointed out, use of this limiting instruction avoids "the possibility that the broad
language of this statute would ever be used as a means of publishing mere criticism of
incompetence in and corruption in the government." Id. at 1084. For this reason, "the espionage
statute has no applicability to the multitude of leaks that pose no conceivable threat to national
security, but threaten only to embarrass one or another high government official." Id. at 1085
(Wilkinson, J., concurring). Thus, the requirement that the information potentially damage the
United States properly "confine[s] prosecution [under § 793] to cases of serious consequence to
our national security." Id. (Wilkinson, J., concurring).
Nor is this judicial limitation on the meaning of "information relating to the national
defense" obviated or rendered unnecessary by the additional scienter requirement that the
defendants, in communicating the information allegedly received from their government sources,
must have reason to believe the communication "could be used to the injury of the United States
or to the advantage of any foreign nation." 18 U.S.C. §§ 793(d) and (e). This scienter
requirement, by itself, is inadequate protection against a First Amendment challenge for three
reasons, all of which are related to the need for the government to justify its restriction on free
speech. First, the requirement that the defendant have "reason to believe [the disclosure of
information] could be used to the injury of the United States or to the advantage of any foreign
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nation" applies only to the communication of "information," ^54 and therefore, the intrinsic
limitation of the term "relating to the national defense" to items potentially damaging to the
United States is required to avoid rendering the statute unconstitutionally overbroad where
persons exercise their First Amendment rights by transmitting a tangible item related to the
national defense. See Morison, 844 F.2d at 1084-86. Thus, to take a hypothetical example,
without this limitation the statute could be used to punish a newspaper for publishing a classified
document that simply recounts official misconduct in awarding defense contracts. As
demonstrated by the concurrences in Morison, such a prosecution would clearly violate the First
Amendment.
Second, the scienter requirement is in the disjunctive--"reason to believe [the
information] could be used to the injury of the United States or to the advantage of a foreign
nation"--implying that the statute would permit prosecution for the communication of
information in instances where there is no reason to believe the information could harm the
United States, but there is reason to believe it could be used to the advantage of a foreign nation.
For example, absent the judicial limitation on NDI, the statute would reach disclosure of the
government's closely held secret that a foreign nation is sitting atop a huge oil reserve, when the
disclosure of such information cannot plausibly cause harm to the United States. This result is
inconsistent with the obvious purpose of the statute and the command of the First Amendment,
and must be rejected. As Judge Hand observed in the context of the similar phrase in Section 2
of the Espionage Act (currently codified at § 794(a)):
54
See Edgar and Schmidt, Espionage Statutes, 73 Colum.L.Rev. at 1023 (citing S.Rep.No.
427, 80th Cong., 1stt Sess. 7 (1949)); id. at 1024 (H.R.Rep.No. 647, 81st Cong., 1st Sess.
(1949)).
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The section as enacted necessarily implies that there are some kinds of
information `relating to the national defense' which must not be given to a
friendly power, not even to an ally, no matter how innocent, or even
commendable, the purpose of the sender may be. Obviously, so drastic a
repression of the free exchange of information it is wise carefully to scrutinize,
lest extravagant and absurd consequences result.
United States v. Heine, 151 F.2d 813, 815 (2d Cir. 1945). Although Judge Hand reversed
Heine's conviction on the ground that the information was not closely held, his reasoning also
supports the need for limiting NDI to that information which is potentially harmful to the United
States, "lest extravagant and absurd consequences result."
Finally, even when a person is charged with the transmission of intangible "information"
the person had "reason to believe could be used to the injury of the United States," the
application of the statute without the requirement that disclosure of the information be potentially
harmful to the United States would subject non-governmental employees to prosecution for the
innocent, albeit negligent, disclosure of information relating to the national defense. Punishing
defendants engaged in public debate for unwittingly harming a legitimate government interest is
inconsistent with the Supreme Court's First Amendment jurisprudence. ^55 Limiting the set of
information relating to the national defense to that information which the defendant knows, if
disclosed, is potentially harmful to the United States, by virtue of the statute's willfulness
requirement, avoids this problem. Thus, for these reasons, information relating to the national
55
See, e.g., BE & K Construction Co. v. N.L.R.B., 536 U.S. 516, 531 (2002) (limiting
regulation of retaliatory suits to those "both objectively and subjectively motivated by an
unlawful purpose" on the First Amendment grounds); New York Times v. Sullivan, 376 U.S. 254,
279-80 (1964) (holding that suits brought by public officials claiming defamation must allege
both false statements and the subjective intent or reckless disregard of their falsity). See also
Snepp, 444 U.S. at 509 ("The district court found that Snepp had `willfully, deliberately and
surreptitiously breached his position of trust with the CIA and the [1968] secrecy agreement' by
publishing his book without prepublication review.").
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defense, whether tangible or intangible, must necessarily be information which if disclosed, is
potentially harmful to the United States, and the defendant must know that disclosure of the
information is potentially harmful to the United States. The alternative construction simply is
not sustainable. ^56 So limited, the statute does not violate the defendants' First Amendment
guarantee of free speech.
For essentially the same reasons, § 793, as-applied to these defendants, does not violate
the defendants' First Amendment right to petition the government for grievances. The Supreme
Court has stated that "[t]he right to petition is cut from the same cloth as the other guarantees of
[the First] Amendment, and is an assurance of a particular expression of freedom." McDonald v.
Smith, 472 U.S. 479, 482 (1985). Indeed, "this right is implicit in `the very idea of government,
republican in form.'" Id. (quoting United States v. Cruikshank, 92 U.S. 542, 552 (1876)). In
addition, like the right to free speech, the right to petition the government protects not only the
act of petitioning itself, but acts preparatory to such petitioning. Thus, in Allied Tube & Conduit
Corp. v. Indian Head, Inc., 486 U.S. 492 (1988), the Supreme Court acknowledged that the
antitrust immunity for petitioning activities recognized in E. R.R. Presidents Conference v. Noerr
Motor Freight, Inc., 365 U.S. 127, 143 (1961), extends to acts "`incidental' to a valid effort to
influence governmental action." Allied Tube, 486 U.S. at 499 (citing Noerr, 365 U.S. at 143).
See also Sosa v. DirectTV, Inc., 437 F.3d 923, 934-35 (9th Cir. 2006). Citing this principle,
56
As noted, the additional scienter requirement contained in the "reason to believe" clause
that applies to the transmission of intangible information, is not superfluous because it relates not
to the nature of the information, but to the subjective understanding of the defendant as to the
possible effect of the disclosure. In this sense, it is intended to heighten the required finding of
culpable intent in cases where only intangible information has been disclosed, by imposing on
the government the burden to prove beyond a reasonable doubt that the defendant acted in bad
faith.
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defendants argue that the conduct alleged in the superseding indictment is conduct within the
"breathing space" of the right to petition the government because their ability to influence policy
makers within the executive and legislative branches necessarily requires access to the sensitive
information that informs the government's internal debate over foreign policy. For this reason,
defendants contend that § 793 cannot constitutionally be applied to their alleged conduct.
This argument suffers the same fatal flaws as defendants' argument under the First
Amendment's free speech guarantee. Like the First Amendment's guarantee of free speech, the
right to petition the government for grievances is not absolute, and may be validly regulated. See
California Motor Transport, 404 U.S. at 514-15 ("First Amendment rights may not be used as
the means or pretext for achieving `substantive evils'") (citing NAACP v. Button, 371 U.S. 415,
444 (1963)). Thus, in the libel context, the Supreme Court long ago held, and recently
reaffirmed, that libelous petitions sent to the President of the United States may give rise to
liability if the petition was "prompted by `express malice,' which was defined as `falsehood and
the absence of probable cause.'" McDonald, 472 U.S. at 484 (quoting White v. Nicholls, 3 How.
266, 291 (1845)). Likewise, in Brown v. Glines, 444 U.S. 348 (1980), the Supreme Court denied
a First Amendment challenge to "Air Force regulations requiring members of the service to
obtain approval from their commanders before circulating petitions on Air Force bases," and
permitting denial of such approval whenever "distribution of the material would result in `a clear
danger to the loyalty, discipline, or morale of the Armed Forces, or material interference with the
accomplishment of a military mission.'" Id. at 349. This decision was based on the military's
substantial interest in maintaining "a respect for duty and a discipline without counterpart in
civilian life," and the Supreme Court's judgment that "Air Force regulations restrict speech no
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more than necessary to protect the substantial government interest." Id. at 354-55.
Nor does the Petition Clause provide absolute immunity from the antitrust laws. While
the Supreme Court has interpreted the Sherman Act as not applying to "[j]oint efforts to
influence public officials" even when those efforts were "intended to eliminate competition," this
immunity does not extend to petitioning activity that is "a mere sham to cover what is actually
nothing more than an attempt to interfere directly with the business relationships of a
competitor." Noerr, 365 U.S. at 138, 144; see also BE & K Const. Co. v. N.L.R.B., 536 U.S. 516,
525-26 (2002) ("[W]hile genuine petitioning is immune from antitrust liability, sham petitioning
is not."). This exception to the otherwise applicable antitrust immunity for petitioning activity
applies when the petitioning activity (in this case lawsuits) is both "objectively baseless" and
motivated by a subjective intent to use government process to "interfere directly with the
business relationships of a competitor." Professional Real Estate Investors, Inc. v. Columbia
Pictures Industries, Inc., 508 U.S. 49, 60-61 (1993). See also BE & K Construction Co. v.
NLRB, 536 U.S. 516, 537 (2002) (Scalia, J., concurring) ("[T]he implication of our decision
today is that, in a future appropriate case, we will construe the National Labor Relations Act
(NLRA) in the same way we have already construed the Sherman Act: to prohibit only lawsuits
that are both objectively baseless and subjectively intended to abuse process."). These cases
make clear that the right to petition the government is validly restrained if the government does
so for a legitimate purpose. And because the government's vital and legitimate national security
interest is validly served through these statutes, the defendants' right to petition the government,
like their right to free speech, must yield.
Once it is determined that the statute does not infringe on the defendants' First
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Amendment rights, it remains necessary to confront and address the defendants' challenge based
on the overbreadth doctrine. The overbreadth doctrine is an exception to the generally applicable
rules regarding facial challenges, and permits a defendant whose speech is constitutionally
restricted to raise the First Amendment rights of third parties whose constitutionally protected
speech may be "chilled" by the specter of the statute's punishment. Virginia v. Hicks, 539 U.S.
113, 118-19 (2003). The overbreadth doctrine rests on the concern that "[m]any persons, rather
than undertake the considerable burden (and sometimes risk) of vindicating their rights through
case-by-case litigation, will choose simply to abstain from protected speech, harming not only
themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas." Id.
at 119. The Supreme Court has also recognized, however, that the overzealous application of the
overbreadth doctrine also imposes costs on society by preventing the government from
legitimately regulating harmful speech. Id. at 119. For this reason, in order to invalidate § 793
pursuant to the overbreadth doctrine the defendants must demonstrate that the alleged
overbreadth is "`substantial,' not only in the absolute sense, but also relative to the scope of the
law's plainly legitimate applications." Id. at 120 (quoting Broadrick, 413 U.S. at 615).
Defendants' overbreadth challenge fails to meet this requirement. As construed herein,
§§ 793(d) and (e) punish only those people who transmit information related to the national
defense, in tangible or intangible form, to one not entitled to receive it. To prove that the
information is related to the national defense, the government must prove: (1) that the
information relates to the nation's military activities, intelligence gathering or foreign policy, (2)
that the information is closely held by the government, in that it does not exist in the public
domain; and (3) that the information is such that its disclosure could cause injury to the nation's
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security. To prove that the information was transmitted to one not entitled to receive it, the
government must prove that a validly promulgated executive branch regulation or order restricted
the disclosure of information to a certain set of identifiable people, and that the defendant
delivered the information to a person outside this set. In addition, the government must also
prove that the person alleged to have violated these provisions knew the nature of the
information, knew that the person with whom they were communicating was not entitled to the
information, and knew that such communication was illegal, but proceeded nonetheless. Finally,
with respect only to intangible information, the government must prove that the defendant had a
reason to believe that the disclosure of the information could harm the United States or aid a
foreign nation, which the Supreme Court has interpreted as a requirement of bad faith. See
Gorin, 312 U.S. at 28. So construed, the statute is narrowly and sensibly tailored to serve the
government's legitimate interest in protecting the national security, and its effect on First
Amendment freedoms is neither real nor substantial as judged in relation to this legitimate
sweep. For this reason, defendants' overbreadth challenge fails as well.
VI.
Defendant Rosen has moved separately to dismiss Count III of the superseding
indictment, which charges him with aiding and abetting Lawrence Franklin's disclosure of
information relating to the national defense to one not entitled to receive it, namely Rosen, in
violation of 18 U.S.C. §§ 793(d) and 2, on the ground that the overt acts alleged in the
superseding indictment cannot support the government's theory of liability. The facts relevant to
Count III are contained within the overt acts alleged in support of the conspiracy charge in Count
I. Specifically, these allegations are as follows: During a February 12, 2003 meeting Franklin
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disclosed information relating to a classified draft internal policy document concerning a certain
middle eastern country and informed Rosen that he had prepared a separate document relating to
this draft policy document. On March 10, 2003, Rosen and Weissman had a subsequent meeting
with Franklin. Two days later, Franklin called Rosen and left a message indicating that he was
trying to fax a document to Rosen and Weissman. In his message, Franklin stated that he was
unable to complete the fax and wanted to ensure Rosen was present to receive it. The next day,
March 13, 2003, Franklin spoke with Rosen and obtained the latter's home fax number because
he preferred to send the fax to Rosen's residence. Notwithstanding this preference, on March 17,
2003, Franklin sent a facsimile of the document he had prepared based on a classified draft
internal policy document to Rosen's office fax machine. These facts represent the sum of the
superseding indictment's allegations regarding Count III. ^57
As the defendants are quick to point out, the superseding indictment does not allege: (1)
that Rosen ever requested the document Franklin had prepared; (2) that Franklin ever asked for
Rosen's assistance in transmitting this document to anyone; (3) that the document had any
classification markings; or (4) that Rosen ever received or viewed the document. Furthermore,
the defendants point to an additional fact, extrinsic to the superseding indictment, growing out of
Franklin's entry of a guilty plea to Counts I and V of the superseding indictment. In the course of
57
In their classified pleadings, both defendant Rosen and the government point to various
facts not contained in the superseding indictment in support of their respective arguments. These
facts are plainly not relevant to resolving the present motion, which challenges the legal
sufficiency of the superseding indictment. See United States v. Brandon, 298 F.3d 307, 311 (4th
Cir. 2002) ("Thus, the indictment obviously tracks the statutory text of § 1344 which, as we
observed, is generally enough for the indictment to survive a motion to dismiss if it contains a
sufficient "statement of the facts and circumstances [to] inform the accused of the specific
offence . . . with which he is charged.").
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his plea colloquy, Franklin stated in unequivocal terms that he did not believe that the document
at issue in Count III was classified. Specifically, referring to the one page document, Franklin
told the Court, "it was unclassified ­ in my opinion, sir, it was unclassified and it is unclassified."
When the attorney for the government told the Court that "the government would prove that it
was classified," Franklin responded, "not a chance." Franklin did not plead guilty to this count
and following his plea of guilty the government moved to dismiss the count as against Franklin,
which motion was granted.
The Fourth Circuit has instructed that the review of an indictment for sufficiency should
proceed "under a liberal standard [such that] every indictment is . . . indulged in support of
sufficiency." United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir. 1994) (quoting United
States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990)) (internal quotations and citations omitted). An
indictment is sufficient "if it, first, contains the elements of the offense charged and fairly
informs a defendant of the charge against which he must defend, and, second, enables him to
plead an acquittal or conviction in bar of future prosecutions for the same offense." United
States v. Wicks, 187 F.3d 426, 427 (4th Cir. 1999) (quoting Hamling v. United States, 418 U.S.
87, 117 (1974)). For this reason, an indictment will survive a motion to dismiss if it tracks the
statutory text at issue and also "contains a sufficient statement of the facts and circumstances to
inform the accused of the specific offense with which he is charged." United States v. Brandon,
298 F.3d 307, 311 (4th Cir. 2002) (quoting Hamling, 418 U.S. at 117-18). Further, "a pretrial
motion to dismiss under Rule 12(b), Fed.R.Crim.P., `cannot be based on a sufficiency of the
evidence argument because such argument raises factual questions embraced in the general
issue.'" United States v. Lindh, 212 F.Supp.2d 541, 576 (E.D.Va. 2002) (quoting United States v.
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Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir. 1987)); see also United States v. Terry, 257 F.3d
366, 371 (4th Cir. 2001) (King, J., concurring) ("It is elementary that a motion to dismiss an
indictment implicates only the legal sufficiency of its allegations, not the proof offered by the
Government."). In sum, a court considering the sufficiency of an indictment need ask only
whether the indictment tells "the defendant all that he needs to show for his defense, and . . . so
specify that with which he is charged that he will be in no danger of being a second time put in
jeopardy. If so, it should be held good." Matzkin, 14 F.3d at 1019 (quoting United States v.
Cobb, 905 F.2d 784 (4th Cir. 1990)).
These principles, applied here, compel denial of the motion. Count III clearly tracks the
statutory language, and the overt acts alleged in Count I that relate to Count III provide Rosen
notice of the offense conduct sufficient to allow him to avoid double jeopardy for these alleged
acts. Wicks, 187 F.3d at 427. Defendant Rosen's arguments in support of dismissal, including
his argument based on Franklin's statement at his plea colloquy, are not arguments about the
legal sufficiency of the indictment, but rather arguments about the sufficiency of the
government's proof. These arguments are, therefore, appropriately addressed to the jury and are
not a basis at this time for dismissal. For this reason, Rosen's motion to dismiss Count III must
be denied, as well.
VII.
In the end, it must be said that this is a hard case, and not solely because the parties'
positions and arguments are both substantial and complex. It is also a hard case because it
requires an evaluation of whether Congress has violated our Constitution's most sacred values,
enshrined in the First and the Fifth Amendment, when it passed legislation in furtherance of our
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nation's security. The conclusion here is that the balance struck by § 793 between these
competing interests is constitutionally permissible because (1) it limits the breadth of the term
"related to the national defense" to matters closely held by the government for the legitimate
reason that their disclosure could threaten our collective security; and (2) it imposes rigorous
scienter requirements as a condition for finding criminal liability. ^58
The conclusion that the statute is constitutionally permissible does not reflect a judgment
about whether Congress could strike a more appropriate balance between these competing
interests, or whether a more carefully drawn statute could better serve both the national security
and the value of public debate. Indeed, the basic terms and structure of this statute have
remained largely unchanged since the administration of William Howard Taft. The intervening
years have witnessed dramatic changes in the position of the United States in world affairs and
the nature of threats to our national security. The increasing importance of the United States in
world affairs has caused a significant increase in the size and complexity of the United States'
military and foreign policy establishments, and in the importance of our nation's foreign policy
decision making. Finally, in the nearly one hundred years since the passage of the Defense
Secrets Act mankind has made great technological advances affecting not only the nature and
58
It bears repeating that nothing in this Memorandum Opinion is meant to suggest or to
intimate any view about the guilt or innocence of the defendants. As required by law, the
analysis in this Memorandum Opinion proceeded, for this purpose only, on the basis of an
assumption that the superseding indictment's allegations are true. Indeed, these defendants must
be, and are, presumed innocent of the criminal wrongdoing alleged in the superseding indictment
unless and until a jury were to find beyond a reasonable doubt to the contrary. And it is also
worth noting that nothing in this Memorandum Opinion is intended to suggest or to intimate any
view about the wisdom of the government's decision to pursue this prosecution against these
defendants. Decisions concerning what crimes and persons should be prosecuted is a matter
committed to the sole discretion of the Executive Branch and the role of the Judicial Branch is
limited to adjudicating any prosecutions initiated by the Executive Branch.
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potential devastation of modern warfare, but also the very nature of information and
communication. These changes should suggest to even the most casual observer that the time is
ripe for Congress to engage in a thorough review and revision of these provisions to ensure that
they reflect both these changes, and contemporary views about the appropriate balance between
our nation's security and our citizens' ability to engage in public debate about the United States'
conduct in the society of nations.
An appropriate Order will issue.
___/s/__________________
Alexandria, Virginia T. S. Ellis, III
August 9, 2006 United States District Judge
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